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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CYNTHIA HILL, et al., :
:
Plaintiffs, : Civil Action No.: 1:13-0001 (RC)
:
v. : Re Document No.: 8
:
HON. VINCENT GRAY, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
The plaintiffs are ten former employees of the District of Columbia Public Schools, who
were subject to a reduction-in-force. The plaintiffs brought this suit against the District of
Columbia alleging defamation, due process violations, and age discrimination. The defendants
moved to dismiss all of the plaintiffs’ claims. For the following reasons, the defendants’ motion
to dismiss will be granted, in part, regarding the plaintiffs’ defamation and due process violations
claims and denied, in part, regarding the plaintiffs’ discrimination claims.
II. FACTUAL ALLEGATIONS
On or around October 2, 2009, the District of Columbia Public Schools (“DCPS”)
delivered notices of removal to over two hundred employees of DCPS as part of a reduction-in-
force (“RIF”), which went into effect on November 2, 2009. Compl. ¶ 16. The plaintiffs were
all employees of DCPS. Compl. ¶ 14. At the time of removal, Cynthia Hill, the initially filing
plaintiff of the complaint, worked as a science teacher at Ballou High School; Carol Carter was
assigned to Abraham Simon Elementary School; Curtise Woodward was a social science teacher
1
at Easter High School; Phyllis Lovett was a special education teacher at Ballou High School;
Sandra Williams was assigned at Duke Ellington School of the Arts; Adele LaFranque was
assigned at Ballou High School; Jerelyn Ola Jones was assigned at Woodson Senior High
School; and Francis Simmons was a special education teacher at Eastern Senior High School.
Defs.’ Mot. to Dismiss 2-3; Compl. ¶¶ 15, 49-97. Four of the ten plaintiffs, Curtise Woodward,
Adele LaFranque, Sandra Williams, and Francis Simmons, retired after notice of the RIF, but
before the RIF went into effect. Pls.’ Opp’n 1. All of the plaintiffs were over the age of forty
years old when removed from their positions. Compl. ¶ 14. Additionally, each of the plaintiffs
is African-American or Hispanic. Pls.’ Opp’n 2.
The plaintiffs allege that they did not receive “‘reasonable notice’ as to the essential
factors to be considered in removing [t]eachers from their employment positions. . . . [or] the
nature and type of factors being used in determining [their] likelihood of removal.” Compl. ¶ 17.
Furthermore, plaintiffs allege that they “were not made aware of documents and information
gathered [that was] used by DCPS officers and administrators to determine [removal] . . . [and]
had no access to [such] documents and information.” Compl. ¶ 18. “[M]ore than two years after
they were written, submitted, and published,” the plaintiffs received full copies of the
information used by DCPS. Pls.’ Opp’n 2. As a result, the plaintiffs “were unable to either
confront or rebut the content of unsupported negative allegations.” Compl. ¶ 18.
According to the plaintiffs, the defendants used a Competitive Level Documentation
Form (“CLDF”) system, including Competitive Level Ranking Score Card (“CLRSC”)
documents, to determine who would be removed pursuant to the RIF. Compl. ¶ 25; Pls.’ Opp’n
2. CLDFs and CLRSCs contained narratives written by DCPS principals and administrators
about employee’s performance. Pls.’ Opp’n 2. The plaintiffs argue that the narratives were
2
untrue and that “[t]he CLDF was used to describe [p]laintiffs’ professional performances as
opposed to using verifiable information such as evaluations, verifiable observations, or supported
documents, professional third parties, or active parents.” Pls.’ Opp’n 2-3. Once the plaintiffs
received copies of the CLRSCs in early 2012, they claim they became aware of statements that
were “untrue, unsupported by facts, destructively defamatory, and completely contrary to . . .
previous yearly evaluations.” Compl. ¶ 32.
Ms. Hill, the initially filing plaintiff, filed a complaint with the U.S. Equal Employment
Opportunity Commission (“EEOC”) in November of 2010. Compl. ¶ 20. On October 4, 2012,
Ms. Hill received a right-to-sue letter from the EEOC, Compl. ¶ 20, and filed her complaint with
this Court on January 2, 2013, Pls.’ Opp’n 3. On May 6, 2013, Ms. Hill filed a motion to amend
her initial complaint along with the amended complaint, which includes the nine additional
plaintiffs. Pl.’s Mot. for Leave to File Am. Compl. This Court granted the motion, and the
amended complaint was filed on May 26, 2013. Pls.’ Opp’n 3. All of the nine added plaintiffs
filed complaints with the EEOC except for two, Carol Carter and James Lightfoot. Defs.’ Mot.
to Dismiss 3. The seven plaintiffs that filed with the EEOC received right-to-sue letters between
the dates of November 30, 2012 and March 28, 2013. 1 Pls.’ Opp’n 3. Additionally, eight
plaintiffs 2 filed complaints regarding the RIF with the District of Columbia Office of Employee
Appeals (“OEA”). Defs.’ Mot. to Dismiss. 4.
1
According to the defendant, the plaintiffs received their right-to-sue letters on the following dates: Roland Ashby-
Rier on January 1, 2013; Curtise Woodward on March 28, 2013; Phyllis Lovett on February 28, 2013; Adele
LaFranque on November 30, 2012; Sandra Williams on January 31, 2013; and Jerelyn Ola Jones on January 15,
2013. Defs.’ Mot. to Dismiss 4.
2
The eight plaintiffs are Cynthia Hill, Carol Carter, James Lightfoot, Curtise Woodward, Phyllis Lovett, Adele
LaFranque, Sandra Williams, and Frances Simmons. Defs.’ Mot. to Dismiss 4.
3
III. ANALYSIS
First, the defendants argue that the plaintiffs’ defamation claims should be dismissed
under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 12(b)(6) for failure to state a claim,
because the plaintiffs’ defamation claims do not fall within the applicable one-year statute of
limitations. The defendants argue, however, that even if the defamation claims are not time-
barred, then this Court lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), because
the District of Columbia Comprehensive Merit Personnel Act gives jurisdiction over the
plaintiffs’ claims to the OEA. Second, the defendants argue that the plaintiffs’ due process
violation claims should be dismissed under Fed. R. Civ. P. 12(b)(6) for falling outside of the
applicable three-year statute of limitations. Third, the defendants argue that each of the plaintiffs’
discrimination claims should be dismissed in three separate parts: (1) six plaintiffs failed to
properly exhaust administrative remedies; (2) three plaintiffs did not face the requisite adverse
action; and (3) one plaintiff is barred by res judicata.
A. Legal Standards of Review
1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994); see also Gen. Motors Corp. v. E.P.A., 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a
court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is
the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the
Court must give the plaintiff’s factual allegations closer scrutiny than would be required for a
4
12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations
contained in the complaint. See Wilderness Soc’y v. Griles, 824 F.2d 4, 16 n.10 (D.C. Cir.
1987). Instead, “where necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
2. Motion to Dismiss for Failure to State a Claim (12(b)(6))
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” in order to give the defendants fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes
that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s
favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It
is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint.
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp.
2d 25, 28–29 (D.D.C. 2010).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief
5
above the speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are therefore
insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a
plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of the legal
conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555.
B. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Defamation Claim is
Granted
1. Failure to State a Claim based on Statute of Limitations
The first issue raised by the defendants’ motion to dismiss is whether the plaintiffs’
defamation claim is barred by the applicable one-year statute of limitations. The Court finds that
it is not barred.
A defamation action is considered untimely and barred if it is brought after one year from
the time the action accrued. Farris v. Compton, 652 A.2d 49, 53-54 (D.C. 1994) (citing D.C.
Code § 12-301 (1989)). The moment of accrual typically begins when the injury occurs. Id. at
54. However, with defamation claims, when the injury might not be readily apparent when it
occurs, the moment of accrual is tolled and begins to run when the plaintiff “has discovered or
reasonably should have discovered all of the essential elements of her possible cause of action.”
Caudle v. Thomason, 942 F. Supp. 635, 641 (D.D.C. 1996) (quoting Farris, 652 A.2d at 54); see
also Stith v. Chadbourne & Parke, LLP., 160 F. Supp. 2d 1, 8 (D.D.C. 2001) (applying the
“discovery rule” to a defamation case where the plaintiff had no reason to suspect or know about
the defamatory statement until actually seeing the statement).
The defendants argue that the plaintiffs’ defamation claims are time-barred, because the
claims accrued on or before October of 2009, when the statements were made and used to decide
6
removal, more than three years before the plaintiffs’ complaint was filed in January of 2013.
Defs.’ Mot. to Dismiss. 5-6. The plaintiffs argue, based on one plaintiff’s affidavit, that accrual
of the claim did not begin until March of 2012, when the plaintiffs learned of the defamatory
statements, which falls within the one-year statute of limitations. 3 Pls.’ Opp’n 5, Ex. 3.
The plaintiffs claim that the defendants defamed them in narratives written in the CLDFs
and CLRSCs, which were used to select employees for removal during the RIF in late 2009.
Compl. ¶¶ 32-33. At the time of removal, the plaintiffs claim that they did not receive any
information or materials used by the defendants in support of selecting the plaintiffs for removal.
Compl. ¶¶ 17-18. The plaintiffs claim that they were unaware of the CLRSCs’ contents until
receiving copies of the CLRSCs by mail in 2012. Pls.’ Opp’n 5. One plaintiff swore in an
affidavit, “I did not receive a copy of the narrative from [defendants] and other matters related to
my termination until on or about March 10, 2012.” Pls.’ Opp’n, Ex. 3. Once the plaintiffs
received copies of the CLRSCs in early 2012, they claim they became aware of statements that
were “untrue, unsupported by facts, destructively defamatory, and completely contrary to . . .
previous yearly evaluations.” Compl. ¶ 32.
Because the tolling exception applies to accrual of defamation claims, and because the
plaintiffs claim they were not aware of the defendants’ alleged defamatory statements until
receiving copies of the narratives in 2012, the plaintiffs have shown “enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in the complaint are
true.”” Twombly, 550 U.S. at 555–56 (citations omitted). If the plaintiffs’ claimed early 2012
3
If the Court applies a March 2012 accrual date, it is possible that some (or all) of the later-added plaintiffs’
defamation claims would fall outside the applicable one-year statute of limitations because they were not added to
the complaint until May 2013, more than a year after the defamation claim accrued. But it is also possible that,
pursuant to Fed. R. Civ. P. 15, these plaintiffs’ later-added defamation claims could relate back to the date the
original complaint was filed in January 2013, thus, making them timely. However, because neither party raised or
addressed this issue, the Court does not address it.
7
accrual is accepted as true, as required by this Court at the motion to dismiss stage, it would
render their January 2013 filing of this action timely, as it is within the allotted one-year statute
of limitations. Therefore, it is plausible that the plaintiffs’ defamation claim is timely, and the
Court denies the defendants’ motion to dismiss on these grounds.
2. No Subject Matter Jurisdiction Under the CMPA
The defendants argue that even if the plaintiffs’ defamation claim is timely, it is not
actionable because of the District of Columbia Comprehensive Merit Personnel Act (CMPA).
The Court finds this argument to be meritorious.
With rare exceptions, the CMPA is “the exclusive avenue for aggrieved employees of the
District of Columbia to pursue work-related complaints.” Holman v. Williams, 436 F. Supp. 2d
68, 74 (D.D.C. 2006). Among the grievances covered by the CMPA, “[c]ourts have repeatedly
found defamation to be a claim that lands squarely within the CMPA’s jurisdiction.” Owens v.
District of Columbia, 923 F. Supp. 2d 241, 251 (D.D.C. 2013) (holding that the plaintiff’s
defamation claim must be remedied pursuant to the CMPA because it arose directly from her
employment). The CMPA requires aggrieved employees to first file with the Office of
Employee Appeals (OEA), which has primary jurisdiction over such claims. See D.C. Code § 1-
606.02; Washington v. District of Columbia, 538 F. Supp. 2d 269, 275-76 (D.D.C. 2008)
(explaining that before any judicial review, the employee must first go through the OEA);
Owens, 923 F. Supp. 2d at 249 (finding that the OEA has jurisdiction “in the first instance” and
is the “first line of relief”).
If there is any jurisdictional question regarding whether the CMPA applies, the plaintiff is
still required to first invoke the CMPA’s procedure “‘because the determination whether the
OEA has jurisdiction is quintessentially a decision for the OEA to make.’” Id. (quoting
8
McManus v. District of Columbia, 530 F. Supp. 2d 46, 78 (D.D.C. 2007)). The OEA, pursuant
to the CMPA, still has “primary jurisdiction to resolve the plaintiffs’ claims” even when “an
alleged constitutional violation is intertwined with an alleged statutory violation.” Washington,
538 F. Supp. 2d at 275 (citing Nat'l Treasury Employees Union v. King, 961 F.2d 240, 243 (D.C.
Cir.1992)); see also Owens, 923 F. Supp. 2d at 248 (“Simply presenting a constitutional claim is
insufficient to exempt plaintiffs from complying with the CMPA procedure.”); McManus, 530 F.
Supp. 2d at 79 (“Plaintiffs therefore cannot use a constitutional hook to reel their CMPA-
precluded claims into this Court.”). This Court has also applied this principle when plaintiffs
present Title VII claims and held that plaintiffs must first bring CMPA claims to the OEA. See
Lewis v. District of Columbia, 885 F. Supp. 2d 421, 427-28 (D.D.C. 2012) (granting defendant’s
motion to dismiss in part for plaintiff’s CMPA claim, even though it was intertwined with a Title
VII claim).
As the plaintiffs argue, courts sometimes recognize exceptions to the CMPA when the
plaintiff’s exhaustion of remedies would be futile. See Winter v. Local Union No. 639,
Affiliation With Intern. Broth. of Teamsters, 569 F.2d 146, 149 (D.C. Cir. 1977); Pls.’ Opp’n 7-8.
A plaintiff can demonstrate a “clear and positive showing of futility” when the prescribed
remedy would not provide adequate relief or when the prescribed remedy would certainly result
in an adverse decision. Winter, 569 F.2d at 149 (finding that the administrative remedy provided
adequate relief because the plaintiff could obtain at least some of the remedy he sought); see also
Johnson v. District of Columbia, 552 F.3d 806, 812-13 (D.C. Cir. 2008) (holding that the
plaintiff did not make a clear showing of futility because past cases supported the prescribed
administrative remedy being the appropriate procedure for the plaintiff’s claim); Randolph-
Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105-06 (D.C. Cir. 1986) (explaining that
9
an adverse decision is certain when the “agency charged with arbitration has indicated that it
does not have jurisdiction over the dispute, or because it has evidenced a strong stand on the
issue in question and an unwillingness to reconsider the issue”).
The defendants correctly point out that the plaintiffs’ defamation claims fall under the
CMPA. Defs.’ Mot. to Dismiss 6; see Owens, 923 F. Supp. 2d at 251. Although the plaintiffs
raise a jurisdictional question regarding whether the CMPA applies when their defamation
claims are linked to the same set of facts as their discrimination claims, this argument is
irrelevant, “‘because the determination whether the OEA has jurisdiction is quintessentially a
decision for the OEA to make.’” Owens, 923 F. Supp. 2d at 249 (quoting McManus, 530 F.
Supp. 2d at 78); see also Lewis, 885 F. Supp. 2d at 427-28. The OEA, therefore, has primary
jurisdiction over the plaintiffs’ defamation claims, if no exceptions apply. See D.C. Code § 1-
606.02; Washington, 538 F. Supp. 2d at 275-76.
The plaintiffs argue that pursuing their defamation claims before the CMPA would be
futile, thus, excusing them from having to bring that claim there first. Pls.’ Opp’n 8. In support
of their futility argument, the plaintiffs state that the defendants withheld the alleged defamatory
reports from the plaintiffs and that the defendants “refused to negotiate” with the plaintiffs. Pls.’
Opp’n 8. While this may be true, it does not demonstrate a “clear and positive showing of
futility,” because it does not lend support to a finding that the OEA would not provide adequate
relief or that the OEA would certainly provide a decision against the plaintiffs. See Winter, 569
F.2d at 149. The plaintiffs also argue that filing with the OEA will be futile, because the OEA
will deny jurisdiction of the defamation claims for timeliness. Pls.’ Opp’n 10. As already
shown, however, it is plausible that the discovery tolling rule could apply to the plaintiffs’
defamation claims, which would permit the OEA’s jurisdiction. See Caudle, 942 F. Supp. at 641.
10
The plaintiffs offered no other support to find a “clear and positive showing of futility.” Winter,
569 F.2d at 149.
Although the plaintiffs argue that the defendants did not explicitly raise a lack of subject
matter jurisdiction under 12(b)(1), Pls.’ Opp’n 6, that does not effect this Court’s decision
because courts “may dispose of the motion on the basis of the complaint alone or may consider
materials beyond the pleadings.” Holman, 436 F. Supp. 2d at 73. Therefore, because the
plaintiffs’ defamation claims “land[] squarely within the CMPA’s jurisdiction,” and the plaintiffs
failed to show that any exceptions apply, the Court grants the defendants’ motion to dismiss the
defamation claims on these grounds. See Owens, 923 F. Supp. 2d at 251.
C. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Due Process Violation
Claim is Granted
The second issue raised by the defendants’ motion to dismiss is whether the plaintiffs’
procedural due process claim is barred by the applicable three-year statute of limitations. 4 As set
forth below, the Court concludes that the plaintiffs’ due process claims are time-barred.
A procedural due process claim is “brought pursuant to 42 U.S.C. § 1983, which provides
a cause of action for remedying constitutional violations by state actors generally.” Morris v.
Carter Global Lee, Inc., CV 12-01800(CKK), 2013 WL 5916816, at *4 (D.D.C. Nov. 5, 2013).
Because § 1983 does not contain its own statute of limitations, courts apply the applicable state’s
general or residual statute of limitations for personal injury tort actions. Id. (citing Wallace v.
Kato, 549 U.S. 384, 387 (2007); Owens v. Okure, 488 U.S. 235, 249-50 (1989)). This Court has
applied “the District of Columbia's three-year residual statute of limitations for tort claims to §
1983 claims.” Id. (citing Earle v. District of Columbia, 707 F.3d 299, 305 (D.C. Cir. 2012)).
The moment of accrual for a § 1983 claim, however, is governed by federal law and begins when
4
It is unclear why the defendants have not argued that this claim is also barred by the CMPA, at least for those
plaintiffs that never pursued a challenge before the OEA.
11
a plaintiff has “a complete and present cause of action” and can “file suit and obtain relief.” Bay
Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201
(1997); Morris, 2013 WL 5916816, at *4 (holding that a plaintiff learning of the reasons for his
employment termination after the actual termination was irrelevant to the accrual of the
plaintiff’s claim that the dismissal procedure violated his due process rights, so the claim accrued
at the moment of the plaintiff’s termination).
The defendants argue that the plaintiffs’ due process claims are time-barred, because the
claims accrued on November 2, 2009, “the day that the reduction-in-force which ended their
employment with the [defendants] went into effect,” which is more than three years before the
complaint was filed in January of 2013. Defs.’ Mot. to Dismiss 7. Similar to the plaintiff in
Morris, the plaintiffs argue that accrual did not begin until early 2012, when the plaintiffs
learned of the CLRSC narratives used as reasoning for their terminations. Pls.’ Opp’n 10-11.
The plaintiffs claim that the defendants violated their due process right by denying the
plaintiffs an opportunity to respond to or rebut the statements in the CLRSCs, which were used
in selecting the plaintiffs for termination as part of the RIF. Compl. ¶ 18. The plaintiffs claim
that they did not receive notice that such narrative would be part of the RIF’s determination
process before or at their terminations in November of 2009. Compl. ¶¶ 17-18. Additionally,
the plaintiffs claim that they did not become aware of the CLRSCs’ content until early 2012,
when they received copies of the CLRSCs in the mail. Pls.’ Opp’n 5. According to this Court in
Morris, however, these facts are irrelevant, because they do not affect the fact that plaintiffs
claim that the defendants violated their due process rights at the moment they were denied an
opportunity to respond to their terminations as part of the RIF, which took place in November of
2009. 2013 WL 5916816, at *5 (“What matters [in a procedural due process claim] is that
12
Plaintiff was allegedly deprived of notice and an opportunity to be heard at the time of his
deprivation. His cause of action became complete at the moment of his alleged deprivation
without due process.”)
Even if the plaintiffs’ claims that they did not know of the CLRSCs’ narrative until early
2012 is accepted as true, as required at the motion to dismiss stage, that fact is “irrelevant” to the
accrual of a procedural due process claim. Because the plaintiffs were deprived of an
opportunity to respond to their CLRSCs prior to their terminations in November of 2009, the
plaintiffs had “a complete and present cause of action” at that point, more than three years before
the plaintiffs filed their complaint in January of 2013. Bay Area Laundry, 522 U.S. at 201.
Because the plaintiffs’ due process claim is barred by the applicable three-year statute of
limitations, the plaintiffs did not provide “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). Therefore, the Court grants the defendants’ motion to dismiss as to the plaintiffs’ due
process claims.
D. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Discrimination Claims
is Denied
The defendants argue that all ten plaintiffs’ discrimination claims should be dismissed
according to three separate arguments. First, the defendants argue that six plaintiffs failed to
exhaust their administrative remedies. Second, the defendants argue that three plaintiffs did not
face adverse action by their employer when they retired. Third, the defendants argue that this
court lacks jurisdiction over one plaintiff’s claims due to res judicata. For the reasons set forth
below, all three arguments fail.
1. Six Plaintiffs “Vicariously Exhausted” Their Administrative Remedies
13
The defendants argue that six of the ten plaintiffs’ discrimination claims should be
dismissed because those six plaintiffs “failed to meet the procedural requisites to bring their
ADEA claims before this Court.” Defs.’ Mot. to Dismiss 7. The plaintiffs do not deny that the
six plaintiffs failed to meet procedural requirements, but argue, instead, that under Title VII 5
they were not required to do so, because they are joining their identical claims to those of the
initially filing plaintiff, Cynthia Hill, who properly completed all procedural requirements. Pls.’
Opp’n 13.
Both the Age Discrimination in Employment Act (ADEA) and Title VII require that,
“[b]efore suing under either the ADEA or Title VII, an aggrieved party must exhaust his
administrative remedies by filing a charge of discrimination with the EEOC within 180 days of
the alleged discriminatory incident.” Washington v. Washington Metro. Area Transit Auth., 160
F.3d 750, 752 (D.C. Cir. 1998) (citing 29 U.S.C. § 626(d)(1) (1994)); 42 U.S.C. § 2000e-5(e)(1)
(1994)). To maintain a civil suit, a plaintiff has ninety days to file once the Equal Employment
Opportunity Commission (EEOC) issues a right-to-sue letter to the plaintiff. See Nkengfack v.
Am. Ass’n of Retired Persons, 818 F. Supp. 2d 178, 180 (D.D.C. 2011); 42 U.S.C. § 2000e–
5(f)(1); 29 U.S.C. § 626(e). The ninety-day period begins to run “the day after the right-to-sue
letter was received.” Akridge v. Gallaudet University, 729 F. Supp. 2d 172, 178 (D.D.C. 2010)
(citing Fed. R. Civ. P. 6(a)(1)). “No matter how slight the tardiness, a court is not at liberty to
disregard the 90-day deadline out of a vague sympathy for any particular plaintiff.” Turner v.
Afro-Am. Newspaper Co., 572 F. Supp. 2d 71, 73 (D.D.C. 2008) (citing Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
5
Despite the plaintiffs raising age discrimination claims pursuant to the ADEA, their opposition brief couches all of
their discrimination claims pursuant to Title VII. This difference is irrelevant to this Court’s decision, because in the
context of this case, the procedural requirements are the same for both Title VII and the ADEA.
14
However, this Court has recognized the “single-filing exception” pursuant to the doctrine
of vicarious exhaustion. See Peters v. District of Columbia, 873 F. Supp. 2d 158, 181-82
(D.D.C. 2012) (holding that the “single-filing” exception did not apply to five plaintiffs trying to
“piggy-back” on one plaintiff’s properly filed complaint); Moore v. Chertoff, 437 F. Supp. 2d
156, 163 (D.D.C. 2006) (finding that plaintiffs could rely on the vicarious exhaustion doctrine to
join a properly pleading plaintiff). “The single-filing exception ‘allows non-filing parties to join
the suit of another similarly situated plaintiff who did file an administrative complaint against the
same defendant.’” Peters, 873 F. Supp. 2d at 181-82 (quoting Brooks v. Dist. Hosp. Partners,
L.P., 606 F.3d 800, 804 (D.C. Cir. 2010)). A plaintiff may invoke this exception “only if one
plaintiff actually has exhausted his claims and if the exhausted claims are so similar to the
unexhausted claims that ‘it can fairly be said that no conciliatory purpose would be served by
filing separate EEOC charges.’” Moore, 437 F. Supp. 2d at 163 (quoting Foster v. Gueory, 655
F.2d 1319, 1322 (D.C. Cir. 1981)). To determine whether the exhausted claims and unexhausted
claims are “‘so similar that it can fairly be said that no conciliatory purpose would be served by
filing separate administrative charges’ . . . courts have examined the original EEOC filing of the
party with the perfected EEOC charge to evaluate whether it provided sufficient notice of all
charges by the plaintiffs who claim to be similarly situated . . .” Peters, 873 F. Supp. 2d at 182-
83 (quoting Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C. Cir. 1985)); see also Byrd v. District of
Columbia, 807 F. Supp. 2d 37, 64 (D.D.C. 2011) (holding that similarities of legal claims and
overlapping facts were not enough to show that unexhausted claims were “so similar” to an
exhausted claim and invoke the single-filing exception).
15
The six plaintiffs at issue 6 did not properly follow administrative procedures. 7 To survive
their procedural missteps, these six plaintiffs are relying on the perfected filing of Ms. Hill by
invoking the single-filing exception. Pls.’ Opp’n 13. Ms. Hill’s EEOC complaint alleges that
she was discriminated against based on race, in violation of Title VII, and based on age, in
violation of the ADEA. ECF Doc. 8, Ex. B. Ms. Hill’s EEOC complaint, therefore, put the
defendants on notice of racial discrimination claims under Title VII and age discrimination
claims under the ADEA, in relation to the RIF.
In the amended complaint, each of the six plaintiffs’ amendments begin by “accept[ing]
all allegations made in paragraphs 1 through 48 insofar as they describe the ‘One Round of
Lateral Competition’ and all activities, policies action matters [sic] therein related including the
wrongs, violations, discrimination, torts losses of properties, rights created, caused by and
connected to all Defendants and DCPS.” See e.g., Pls.’ Compl. ¶ 56. All six plaintiffs accept Ms.
Hill’s allegations against the defendants, but also provide individual accounts of their own RIF
experiences. Pls.’ Compl. ¶¶ 49-97. While there is some variation among specific schools the
plaintiffs were assigned to at the time of the RIF, the defendants failed to file a reply to the
plaintiffs’ opposition to address the variations between Ms. Hill and the six plaintiffs attempting
to “piggy-back.” It is possible, therefore, that the six plaintiffs’ claims are too dissimilar to Ms.
Hill’s claim, but because the defendants did not take the opportunity to raise those arguments,
this Court will not reach an argument that was not raised.
6
The six plaintiffs are Carol Carter, James Lightfoot, Roland Ashby-Rier, Phyllis Lovett, Adele LaFranque, and
Jerelyn Jones. Pls.’ Opp’n 11; Defs.’ Mot. to Dismiss 8.
7
Carol Carter did not file with the EEOC; James Lightfoot did not file with the EEOC; Roland Ashby-Rier was
added to the complaint 111 days after his right-to-sue letter; Phyllis Lovett’s amended EEOC claim did not mention
age discrimination; Adele LaFranque was added to the complaint 158 days after her right-to-sue letter; Jerelyn Jones
was added to the complaint 111 days after her right-to-sue letter. Defs.’ Mot. to Dismiss 8.
16
The possibly significant dissimilarities, however, could be insignificant. The plaintiffs
argue that the six plaintiffs are all similarly situated to Ms. Hill, because they each “suffered and
alleged the identical harm as” Ms. Hill. Pls.’ Opp’n 13. Although all the plaintiffs are employed
by the defendants, Compl. 14, each plaintiff likely had a unique narrative written about him or
her by the corresponding school’s administrator or principal in the CLDFs. The plaintiffs point
out, however, that each narrative was passed to and accepted by DCPS as the primary
justification for removal, Compl. 23, meaning that the individual schools likely did not make
direct RIF decisions, but instead the decisions were left to DCPS. If this were true, then it is
plausible that the six plaintiffs’ discrimination claims would be “so similar” to Ms. Hill’s claim
that “‘it can fairly be said that no conciliatory purpose would be served by filing separate EEOC
charges.’” Moore, 437 F. Supp. 2d at 163 (quoting Foster, 8 655 F.2d at 1322).
Because the later-added plaintiffs argue that their discrimination claims are “similarly
situated” to Ms. Hill’s discrimination claims, and because the defendants did not take the
opportunity to raise any counter-arguments, this Court will apply the single-filing exception
pursuant to the doctrine of vicarious exhaustion and allow these six plaintiffs to join Ms. Hill’s
properly filed complaint, despite their procedural missteps. This Court, therefore, finds the
discrimination claims of Carol Carter, James Lightfoot, Roland Ashby-Rier, Adele LaFranque,
and Jerelyn Jones are properly before this Court, and therefore, denies this portion of the
defendants’ motion to dismiss.
2. Three Plaintiffs Faced Possible Constructive Discharge
8
The plaintiffs correctly rely on Foster, where the court found that the claims were “so similar” and allowed the
plaintiffs’ motion to intervene pursuant to the doctrine of vicarious exhaustion. 655 F.2d at 1323. One distinction
from Foster, and this case, however, is that in Foster none of the intervening plaintiffs had filed with the EEOC, and
in this case, out of the six plaintiffs attempting to “piggy-back” on Ms. Hill’s claims, two never filed with the EEOC
and four filed with the EEOC, but failed to file in this Court within ninety days. The parties have not briefed,
therefore, the Court does not reach, whether this difference is significant.
17
The defendants argue that three plaintiffs failed to state actionable discrimination claims
because they “were not subject to an adverse personnel action” when they voluntarily retired.
Defs.’ Mot. to Dismiss 9. The plaintiffs argue, in response, that while the three plaintiffs “may
appear on paper as if they voluntarily retired,” they were actually constructively discharged,
which qualifies as an adverse action. Pls.’ Opp’n 14.
“Under Title VII [and] the ADEA . . . the two essential elements of a discrimination
claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the
plaintiff's race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne,
550 F.3d 1191, 1196 (D.C. Cir. 2008). A constructive discharge can serve as an adverse action.
Joyce v. Office of Architect of Capitol, 2013 WL 4758186, at *7 (D.D.C. Sept. 5, 2013). A
finding of constructive discharge requires “a finding of discrimination and the existence of
certain ‘aggravating factors.’” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.
Cir. 1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981)).
An employee’s resignation or retirement is presumed to be voluntary and not an adverse
action, unless the employee overcomes the presumption by showing that the resignation or
retirement was involuntary, and therefore qualifies as a constructive discharge. See Aliotta v.
Bair, 614 F.3d 556, 566-67 (D.C. Cir. 2010) (citing Veitch v. England, 471 F.3d 124, 134 (D.C.
Cir. 2006) (Rogers, J., concurring)). An employee’s resignation or retirement, when the only
other available option for the employee is removal by the employer for valid reasons, does not
qualify as constructive discharge. See Keyes v. Dist. Of Columbia, 372 F.3d 434, 439-40 (D.C.
Cir. 2004) (explaining that when faced with the choice of retirement or for-cause termination,
choosing retirement is a difficult choice for the employee, but not an involuntary choice). “Mere
uncertainty due to the threat of a RIF layoff does not translate into a constructive discharge.”
18
Aliotta, 614 F.3d at 567 (distinguishing between an employee being faced with the risk for
termination and the absolute certainty of termination). A plaintiff can overcome the presumption
of voluntariness, however, by showing that the defendants created “aggravating factors . . . [and]
deliberately made [the plaintiff’s] working conditions intolerable.” Clark, 665 F.2d at 1176
(holding that a plaintiff’s retirement qualified as a constructive discharge because of the history
of discrimination against the plaintiff by the defendant).
Three plaintiffs, 9 Curtise Woodward, Sandra Williams, and Francis Simmons, retired
before the RIF went into effect on November 2, 2009. Pls.’ Opp’n 1. While the defendants
argue that the retirements were voluntary, the plaintiffs argue that while it “may appear on paper
as if they voluntarily retired . . . this is a fact in dispute.” Pls.’ Opp’n 14. In order to overcome
the presumption of voluntariness that accompanies retiring, the plaintiffs distinguish their
experiences by arguing that “[i]f they had not retired they would have certainly [been] subject to
the RIF.” Pls.’ Opp’n 14 (emphasis added). In support of this, the plaintiffs allege that they
“received clear information about what would happen if they did not retire. . . . A reasonable
person would have felt no other choice other than to retire . . .” Pls.’ Opp’n 14. Again, because
the defendants failed to submit a reply brief, the Court has no response to this argument.
If the plaintiffs allegations are taken as true, then the plaintiffs distinguished their case
from Aliotta, where the employees only faced a risk of termination, but not certainty. 614 F.3d
at 567. Based on the plaintiffs’ allegations that they retired only after being told they would lose
their jobs, it is, therefore, “plausible on its face” that the plaintiffs’ retirements were involuntary
and qualify as constructive discharge. Twombly, 550 U.S. at 570. The plaintiffs, therefore,
provided “sufficient factual matter, accepted as true, to ‘state a claim to relief.’” Iqbal, 556 U.S.
9
The total number of plaintiffs that retired is four, but the defendant grouped one of those four plaintiffs into the
failure to exhaust administrative remedies argument instead of the adverse action argument. Defs.’ Mot. to Dismiss
3, 8.
19
at 678 (quoting Twombly, 550 U.S. at 570). The Court denies the defendants’ motion to dismiss
on these grounds. However, the defendants can explore this issue during discovery and perhaps,
if the facts merit, raise it again at the summary judgment stage.
3. This Court Does Not Lack Subject Matter Jurisdiction Over Ms. Hill’s
Discrimination Claims
The defendants argue that this court lacks subject matter jurisdiction over Ms. Hill’s
discrimination claims pursuant to res judicata. Defs.’ Mot. to Dismiss 9-10. The defendants
argue that Ms. Hill “can only prevail on her [discrimination] claim if she can show that the
reduction-in-force regulations were not followed . . . [and] this was already adjudicated by the
OEA.” Defs.’ Mot. to Dismiss 10. Ms. Hill argues, in response, that her discrimination claim is
not precluded, and she is entitled to jurisdiction in this Court.
The defendants correctly state that, “under res judicata, ‘a final judgment on the merits of
an action precludes the parties or their privies from relitigating issues that were or could have
been raised in that action.’” Drake v. F.A.A., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v.
McCurry, 449 U.S. 90, 94 (1980)). However, “‘unreviewed determinations by state agencies
stand on a different footing.’” Davis v. Joseph J. Magnolia, Inc., 815 F. Supp. 2d 270, 274-75
(D.D.C. 2011) (quoting Univ. of Tennessee v. Elliott, 478 U.S. 788, 792 (1986)). Specifically,
“Congress did not intend unreviewed state administrative proceedings to have preclusive effect
on Title VII claims.” Univ. of Tennessee, 478 U.S. at 792; see also Davis, 815 F. Supp. 2d at
274-75 (allowing the plaintiff’s Title VII claim to move forward, because a state court had not
yet issued a final ruling on the agency’s decision, leaving the agency decision unreviewed).
Agency decisions related to claims under the ADEA follow the same principle. See Astoria Fed.
Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 106 (1991) (holding that “judicially unreviewed
20
findings of a state administrative agency made with respect to an age-discrimination claim . . .
have no preclusive effect on federal proceedings”).
In response to Ms. Hill’s allegations about the legality of the RIF, the OEA issued a final
order on whether the defendants’ actions “pursuant to a RIF [were] done in accordance with all
applicable laws, rules, or regulations.” Defs.’ Mot. to Dismiss, Ex. A. The OEA did not address
Ms. Hill’s discrimination claim under either Title VII or the ADEA. Defs.’ Mot. to Dismiss, Ex.
A. Furthermore, there is nothing in the record that shows that a state court reviewed the OEA’s
final order holding that the defendants’ RIF proceedings were upheld. The OEA’s final order is,
therefore, “judicially unreviewed.” Solimino, 501 U.S. at 106. While the defendants’ argument
that Ms. Hill’s previous claim about the legality of the RIF is “[t]he linchpin” of her
discrimination claim may be true, Defs.’ Mot. to Dismiss 9, this does not preclude Ms. Hill’s
discrimination claim from being litigated by this Court, because they are two separate claims. 10
Because the OEA did not address Ms. Hill’s discrimination claim under Title VII or the
ADEA, and because the OEA’s final order is “judicially unreviewed,” there is no preclusive
effect on Ms. Hill’s discrimination claims. This Court finds that it has subject matter jurisdiction
over Ms. Hill’s discrimination claims and therefore, denies the defendants’ motion to dismiss
regarding Ms. Hill’s discrimination claims.
10
Ms. Hill may face issue preclusion regarding the legality of the RIF process, but this is distinguished from claim
preclusion. “Issue preclusion establishes in a later trial on a different claim identical issues resolved in an earlier
trial, if certain conditions are met. First, the issue must have been actually litigated . . . Second, the issue must have
been ‘actually and necessarily determined by a court of competent jurisdiction’ in the first trial. . . . Third, preclusion
in the second trial must not work an unfairness.” Otherson v. Dep't of Justice, I.N.S., 711 F.2d 267, 273 (D.C. Cir.
1983) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)).
21
IV. CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss is granted as to the
defamation and due process claims and denied as to the discrimination claims. An order
consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 21, 2014 RUDOLPH CONTRERAS
United States District Judge
22
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714 F.2d 130
Hayesv.Brown & Root, Inc.
82-2160
UNITED STATES COURT OF APPEALS Fourth Circuit
7/5/83
1
E.D.Va.
AFFIRMED
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FILED
NOT FOR PUBLICATION SEP 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30400
Plaintiff - Appellee, D.C. No. 4:12-cr-00045-SEH
v.
MEMORANDUM*
ERIC LEE MANY GUNS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted July 30, 2013**
Before: HUG, CANBY, and LEAVY, Circuit Judges.
Eric Lee Many Guns appeals from the district court’s judgment and
challenges the 33-month sentence imposed following his guilty-plea conviction for
assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and
1153(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Many Guns contends that his 33-month sentence is substantively
unreasonable because the district court gave insufficient weight to his alcoholism
and undue weight to his tribal criminal history, which scored no criminal history
points under the Guidelines. The district court did not abuse its discretion in
imposing Many Guns’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The within-Guidelines sentence is substantively reasonable in light of the
18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including the severity of the assault and his extensive tribal criminal history. See
id.
AFFIRMED.
2 12-30400
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915 F.2d 1324
59 USLW 2244
Curtis K. WADE; Joan Vertlieb; Sharon Svare; RobertSvare; John Starkovick; Johanna Starkovick;Richard Stainslaw; Roger-Olympic Corp.,et al., Plaintiffs-Appellants,v.SKIPPER'S, INC., Defendant-Appellee.
No. 90-35103.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted August 9, 1990.Decided Sept. 28, 1990.
Paul E. Brain, Tousley, Brain, Seattle, Wash., for plaintiffs-appellants.
Michael A. Small, Sirianni & Youtz, Seattle, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, BEEZER and TROTT, Circuit Judges.
BEEZER, Circuit Judge:
1
Investors in a limited partnership, formed to own and operate seven Skipper's Seafood N' Chowder House restaurants pursuant to a franchise agreement, appeal from the district court's order granting summary judgment to Skipper's. The investors argue that the court erred in determining that Skipper's was not a "seller" under the Washington State Securities Act and in refusing to instruct the jury with regard to an implied private right of action under RCW 21.20.010. We affirm.
2
* Skipper's is a publicly-held corporation that owns and operates Skipper's Seafood N' Chowder House restaurants. It also franchises the right to own and operate such restaurants to others.
3
In February 1983, John Greer and James Dixon initiated discussions with representatives of Skipper's concerning franchise rights to own and operate restaurants. Skipper's provided Greer and Dixon with franchise offering circulars for Hawaii and Oregon. Meetings and discussions continued, and as a result, on June 16, 1983, Greer and Dixon entered into an Area Development Agreement with Skipper's. Under the agreement, Greer and Dixon acquired the exclusive rights to construct and operate seven Skipper's restaurants in Oahu, Hawaii, over a five-year period. The agreement provided that Greer and Dixon, as franchisees, were solely responsible for selecting restaurant sites. Skipper's, in turn, had the right to approve or reject each site after an evaluation that included revenue estimates generated by Skipper's based on site-specific factors (e.g., proximity to major roads, number of restaurants nearby, etc.). Skipper's specifically advised Greer and Dixon that its revenue estimates were confidential and would not be disclosed.
4
In July 1983, Greer and Dixon prepared their own initial revenue projections, assuming that each of the two proposed restaurants would generate gross sales of $700,000 or more in the first year. After visiting the first proposed site at Kaneohe to collect data necessary for a qualitative site selection analysis, Skipper's field representative, Roger Wilkowski, expressed concern to Greer and Dixon about the level of sales they were projecting.
5
The parties dispute what Wilkowski represented to Greer and Dixon about the reliability of Skipper's Site Evaluation Data ("SED"). The appellants contend that Greer and Dixon were led to believe that a restaurant site would not be approved by Skipper's unless the SED indicated it would be profitable. Skipper's denies that any such representation was made.
6
In any event, Wilkowski refused to disclose any information about Skipper's revenue estimates or its SED analysis. He explained that it was Skipper's policy not to disclose such information, so as to avoid liability for misrepresentation. Skipper's undisclosed calculation for the site estimated $547,058 in annual revenue. The appellants contend that this estimate indicated that the operation was marginal at best and was likely to lose money.
7
In September 1983, Greer and Dixon retained Laventhol & Howath ("Laventhol") to prepare financial projections based on their July 1983 assumptions. On September 21, 1983, Wilkowski wrote to Dixon and Greer, stating that the proposed lease for the first site had not yet been approved, pending resolution of certain cost calculations. He also urged them to consider projections of annual sales of $600,000 or less. Consequently, Greer and Dixon had Laventhol prepare projections based on these lower assumptions. These projections indicated they would lose money if annual sales were under $600,000.
8
In December 1983, Wilkowski conducted an SED calculation on a second site at Pearl City, but again declined to disclose the results to Greer or Dixon. Skipper's eventually approved the form of the lease for this site without approving the economics of the proposal.
9
In December 1983 and January 1984, Laventhol completed its financial projections to be included in offering documents for a limited partnership, Oahu Restaurant Ventures ("ORV"), which would finance the franchise operation. The corporate general partner of ORV was FC & F of Hawaii, Inc. which was wholly owned and controlled by Greer and Dixon. Laventhol used the higher revenue assumptions provided by Greer and Dixon and subjected them to its standard test.
10
In late December 1983, at Laventhol's request, Skipper's provided financial information on high-volume Skipper's restaurants. Skipper's Anchorage franchise also provided its sales figures, but Skipper's did not participate in this communication. Additionally, at Laventhol's request, Skipper's described specific site criteria used in the SED analysis, but declined to give its values for the criteria. On January 3, 1984, a Laventhol representative spoke with Skipper's director of franchise operations, Sam Peterson, who indicated that he was comfortable with a $700,000 annual sales projection.
11
On January 27, 1984, the attorneys for Greer and Dixon, Foster, Pepper & Riviera, provided Skipper's with a draft of an Offering Memorandum for the limited partnership, but did not give Skipper's the Business Plan containing Laventhol's financial projections. On February 2, 1984, before Skipper's had responded, the Offering Memorandum was sent to the printer. However, Greer and Dixon eventually agreed to include a disclaimer in the Business Plan and, if feasible, in the Offering Memorandum. Consequently, the first page of the Business Plan states: "This investment does not constitute in any form an investment in Skipper's, Inc. You are reviewing the business plan for a Corporation established to own and operate a seven store franchise of Skipper's Restaurants." (Emphasis in original.) The Offering Memorandum further provides: "The Partnership has no control over operations of Skipper's, Inc. and has no affiliation or contractual relation with Skipper's except pursuant to the franchise agreements."
12
ORV was organized under Washington law in February 1984. The appellants purchased their interests in ORV on or after March 15, 1984. Skipper's did not participate in the partnership sales transactions. The broker for the sales, Meisenbach Investment Equity Corporation, mailed Skipper's a copy of the Business Plan containing Laventhol's projections after the date of the offering, on April 19, 1984. The appellants contend, however, that Skipper's had a copy of certain early projections made on or before September 21, 1983. Ultimately, the venture collapsed in 1986 after losing nearly $2,000,000.
13
Three years after the offering, appellants filed suit against Skipper's in the United States District Court for the Western District of Washington, asserting claims based on (1) the sale of unregistered securities in violation of Sec. 12(1) of the Securities Act of 1933; (2) misrepresentations and omissions in the prospectus and oral communications in violation of Sec. 12(2) of the Securities Act of 1933; (3) securities fraud in violation of Sec. 10(b) of the Securities Exchange Act of 1934; (4) "controlling person" liability under Secs. 10(b) and 12 of the federal securities laws; (5) "aiding and abetting" liability under Sec. 10(b) of the federal securities laws; (6) violation of RICO through acts of securities fraud; (7) violations of the Washington State Securities Act ("WSSA") in selling unregistered securities and in committing securities fraud; (8) violation of the Washington State Franchise Act, and (9) violation of the Hawaii State Franchise Act.
14
After an initial round of discovery, the parties agreed to file a joint statement of stipulated facts and to present certain issues to the district court for resolution on cross-motions for summary judgment. After extensive briefing and argument on the summary judgment cross-motions, the court granted summary judgment in favor of Skipper's on the seller liability claims under Secs. 12(1) and 12(2) of the Securities Act of 1933 and on the similar claims asserted under the corresponding provision of the Washington Securities Act, RCW 21.20.430(1). With respect to the federal claims, the court determined that Skipper's was not a "seller" within the narrow definition formulated in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988). The court similarly rejected the state claims because it determined that the record did not indicate that Skipper's had substantially participated in the sale of limited partnership interests in ORV.
15
The court also determined that Skipper's could not be liable as a "controlling person" under either the federal or state securities laws and that it could not be held liable based on the appellant's RICO claim. Additionally, the court held that there was no implied private cause of action under the WSSA.
16
The court denied Skipper's motion for summary judgment with respect to the appellants' claims under Rule 10b-5 and the Washington Franchise Investment Protection Act, RCW Ch. 19.100, because the stipulated facts, as applied to these claims, left room for inferences that were within the province of the jury to make. Accordingly, after additional discovery, the appellants' Rule 10b(5) and Franchise Act claims proceeded to trial. These claims were tried jointly with counterpart Franchise Act claims asserted against Skipper's by Greer and Dixon. The jury returned verdicts in favor of Skipper's on all claims. Final judgment was entered on November 14, 1989. Appellants filed a timely notice of appeal on December 11, 1989.
II
17
We review de novo a grant of summary judgment. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).
III
18
The appellants argue that the test for "seller" status under Washington law is distinct from the federal test as it existed prior to the Supreme Court's decision in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), and requires a broader application of the term "seller." They contend that the district court erred in applying the stricter federal test. The appellants also assert that Skipper's conduct was sufficient under either standard to merit "seller" status. This argument fails.
19
RCW 21.20.430(1) provides: "Any person, who offers or sells a security in violation of any provisions of RCW 21.20.010 or 21.20.140 through 21.20.230, is liable to the person buying the security from him or her...." The Washington Supreme Court has rejected the contention that this language imposes liability only on the literal seller of a security who passes title directly to the plaintiff. See Haberman v. WPPSS, 109 Wash.2d 107, 744 P.2d 1032, 1051 (1987). In Haberman, the Washington Supreme Court concluded that
20
the substantial factor-proximate cause definition of seller prevailing in the federal circuits provides the best guidance for our analysis of seller liability under RCW 21.20.430(1). We note that our conclusion is in accord with the views expressed in the official comments to the recently revised Uniform Securities Act of 1985.... [which] state that under this section, 'liability may be imposed on a person in addition to the immediate seller if the person's participation was a substantial contributive factor in the violation.' We believe this approach best promotes the legislative purpose behind the WSSA, while harmonizing our statutory scheme with federal and other state decisions.
21
Id. 744 P.2d at 1051 (citations omitted).
22
The court then considered the Ninth Circuit's substantial factor-proximate cause analysis, quoting SEC v. Murphy:
23
In assessing proximate cause, courts focus first on whether a defendant's acts were the actual cause of the injury, i.e., whether "but for" the defendant's conduct, there would have been no sale. A finding of "but for" causation, alone, does not satisfy proximate cause, however.... Before a person's acts can be considered the proximate cause of a sale, his acts must also be a substantial factor in bringing about the transaction.
24
Id. 744 P.2d at 1051-52 (quoting SEC v. Murphy, 626 F.2d 633, 650 (9th Cir.1980)) (citations omitted). The Haberman court found the Ninth Circuit's reasoning persuasive. "In a similar fashion" it held:
25
a defendant is liable as a seller under RCW 21.20.430(1) if his acts were a substantial contributive factor in the sales transaction. Considerations important in determining whether a defendant's conduct is a substantial contributive factor in the sales transaction include: (1) the number of other factors which contribute to the sale and the extent of the effect which they have in producing it; (2) whether the defendant's conduct has created a force or series of forces which are in continuous and active operation up to the time of the sale, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; and (3) lapse of time.
26
Id. 744 P.2d at 1052. The Haberman court emphasized that its substantial contributive factor analysis "simply expands the strict privity approach to sellers so as to include those parties who have the attributes of a seller and thus who policy dictates should be subject to liability under RCW 21.20.403(1), but who would escape primary liability for want of privity." Id.
27
Although the Washington Supreme Court followed the federal courts' reasoning in formulating its standard, it specifically refused to follow the United States Supreme Court's subsequent rejection of the substantial factor test in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) (requiring privity for Sec. 12(1) seller liability). See Hoffer v. State, 113 Wash.2d 148, 776 P.2d 963, 965 (1989) (en banc). On reconsideration of Hoffer, the Washington Supreme Court distinguished Pinter, stating that "we find the 'substantial contributive factor' test persuasive in the context of WSSA even if the Supreme Court does not in the federal setting." 776 P.2d at 964-65.
28
Here the district court held that as to the appellants' state securities claim:
29
the record does not contain any genuine issue of fact in favor of the allegation that Skipper's substantially participated in the sale. See Haberman, 109 Wash.2d at 131-32 [744 P.2d 1032]. Consequently, the plaintiff's claim of seller liability under the Washington State Securities Act, RCW 21.20.430(1), is dismissed.
30
Contrary to the appellants' argument, the district court made no reference to the federal test, but rather relied solely on Haberman. Moreover, the cases do not distinguish between the two tests. In fact, in Hoffer, the Washington Supreme Court stated that it had "rejected [the] 'strict privity' interpretation in Haberman.... [and that] [i]n its place [it had] adopted the 'substantial factor-proximate cause' analysis formulated by the federal courts...." Hoffer v. State, 110 Wash.2d 415, 755 P.2d 781, 789 (1988), on recons. (in part) (en banc) (citations omitted) (emphasis added).
31
The appellants also assert that the district court erred in holding that seller liability requires direct, personal contact between the alleged "seller" and the plaintiff buyer. However, the district court's only reference to the lack of direct, personal contact appears in its discussion of seller liability under section 12(1) of the federal act, which is controlled by Pinter. The court correctly held that the substantial factor test was not applicable to that provision.
32
Finally, despite appellants' arguments to the contrary, the district court was correct in concluding that Skipper's conduct as described in the record was insufficient to merit the imposition of seller liability under Washington law. As in Hines v. Data Line Systems:
33
[i]n connection with the actual offering process, there is no evidence to indicate [Skipper's] had any personal contact with any of the investors or was in any way involved in the solicitation process. Instead, the actions of [Greer and Dixon] had the predominant effect of bringing about the sale. [They] conducted the sales transactions beginning with distributing the placement memorandum to securing sales closings with interested investors.... * [Skipper's conduct] was not a catalyst in the sales transaction....
34
114 Wash.2d 127, 149, 787 P.2d 8, 20 (1990).
35
Skipper's did not prepare the offering materials. In fact, although the attorneys for Greer and Dixon provided a draft of the Offering Memorandum to Skipper's, they did not wait for Skipper's response before sending it to the printer. Skipper's only contribution to the materials was the disclaimer it eventually persuaded Greer and Dixon to include. Skipper's conduct in giving Laventhol financial information for other Skipper's restaurants (the accuracy of which is not disputed), discussing estimated projections with a Laventhol representative, and receiving copies of the Offering Memorandum is insufficient to constitute a "substantial contributive factor" in the sale of the limited partnership interests.
IV
36
Appellants also argue that the district court erred in refusing to instruct the jury with respect to an implied private right of action under RCW 21.20.010. They contend that "[t]he district court's ruling contradicts both the case law and the legislative history pertaining to the WSSA." This argument also fails.
Under RCW 21.20.010:
37
It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly:
38
(1) To employ any device, scheme, or artifice to defraud;
39
(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
40
(3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
41
This section, enacted in 1959, "closely resembles its federal counterpart, Rule 10b-5," although Washington law does not require scienter. Burgess v. Premier Corp., 727 F.2d 826, 833 (9th Cir.1984). The Washington Supreme Court has not yet addressed the issue of whether an implied private right of action exists under section .010;1 however, the Court of Appeals for the State of Washington has considered the issue on two occasions. See Shermer v. Baker, 2 Wash.App. 845, 472 P.2d 589 (1970); Ludwig v. Mutual Real Estate Investors, 18 Wash.App. 33, 567 P.2d 658 (1977).
42
In Shermer, the Court of Appeals held that an implied right of action did exist with respect to an action brought against a purchaser of securities. 472 P.2d at 592. At that time, RCW 21.20.430, the "CIVIL LIABILITIES" subdivision of the WSSA, only provided an express right of action against a seller of securities. However, the court noted the similarities between section .010 and Rule 10b-5, as well as the admonition of the legislature expressed in RCW 21.20.900:
43
This chapter shall be so construed as to effectuate its purpose to make uniform the laws of those states which enact it and to coordinate the interpretation and administration of the chapter with the related federal regulation.
44
(Emphasis added). The court stated that "It seems inconceivable to us that the legislature, in 1959, could have intended that RCW 21.20.010 created for intrastate commerce something different from what Rule 10b-5 created for interstate commerce." Id. Consequently, the court held that when "a purchaser of securities ... violates the provisions of RCW 21.20.010, 'any person' injured as a result of such violation has an action for damages in the courts of the state of Washington." Id. 472 P.2d at 592-93 (emphasis added).
45
Seven years later, the court of appeals, including two of the same judges who decided Shermer, had the opportunity to reconsider the issue. In Ludwig, the court initially held that the "fraud or misrepresentation" language of RCW 21.20.430(1) referred to common law fraud, and, therefore, required scienter. The court then considered "whether a private cause of action can be implied from RCW 21.20.010 without the need to resort to the civil liabilities provisions of RCW 21.20.430." 567 P.2d at 662. The court noted that
46
Our Shermer decision, ... was a response to the legislature's failure to provide a statutory damage remedy against a purchaser of securities while providing such a cause of action against a seller of securities. With [the 1975 amendment], this erstwhile statutory omission has since been remedied, and accordingly we think it is appropriate to examine the reasoning behind Shermer.
47
Id. 472 P.2d at 662-63 (citations omitted). The court observed that Shermer relied on RCW 21.20.900 and federal cases implying a civil damage remedy under Rule 10b-5. However, the court stated:
48
[w]hile RCW 21.20.900 does seek to coordinate our interpretation with that of the federal courts, it also requires construction so as 'to make uniform the law of those states which enact it.' Previously we adverted to the fact that the Washington Securities Act is substantially adopted from the Uniform Securities Act and at this juncture we note that RCW 21.20.010 is identical to Sec. 101 of the uniform act. That the uniform act did not contemplate an implied cause of action such as that which has been found in Rule 10b-5 is clearly indicated by the official comments to Sec. 101....
49
Id. at 663.
50
The court then looked to the 1975 amendment to RCW 21.20.430 and relied on the legislature's failure to include RCW 21.20.010 as one of the sections whose violation would give rise to a damages claim.
51
[I]t would have been a simple matter for the legislature to have included RCW 21.20.010 had that been their intent. Consideration of all the circumstances influencing their decision leads us to conclude that the omission was deliberate.
52
Id. (citations omitted). Therefore, the court held that there was no implied private right of action under RCW 21.20.010.
53
However, apparently unknown to the Ludwig court, about a month prior to the decision, the Washington legislature had amended the WSSA so that RCW 21.20.430(1) & (2) provided an express private right of action for a violation of RCW 21.20.010 by either a purchaser or a seller of securities. This amendment also eliminated the phrase "fraud or misrepresentation" from RCW 21.20.430(1) & (2). See Naye v. Boyd, 1986-87 Blue Sky Law Rptr. (CCH) pp 72,393, 71,780 (1986).
54
Further, the Washington Supreme Court overruled Ludwig's holding that the words "fraud" and "misrepresentation" as used in the earlier version of RCW 21.20.430(1) & (2) retain their common law meaning and require scienter. See Kittilson v. Ford, 93 Wash.2d 223, 608 P.2d 264, 265 (1980). Significantly, the Kittilson court held that
55
[t]he coordination of the [interpretation of the WSSA] with federal regulations does not require imitation by this court in construing our act, only that our construction not interfere with the federal scheme. No contention is made either in Ludwig or by defendant that not requiring scienter would interfere with the federal scheme.
56
RCW 21.20.900 contains the further requirement that the act should be construed so as to make state laws uniform. The only other case discussing an unlawful transaction provision is Treider v. Doherty & Co., 86 N.M. 735, 527 P.2d 498 (1974). The New Mexico provision is in all pertinent particulars identical to RCW 21.20.010. In Treider, the New Mexico Court of Appeals construed the statute and [held that intent was irrelevant].... The interpretation of RCW 21.20.010 first announced in Shermer is the better rule. The legislature has not seen fit to disturb it and neither do we.
57
Id. 608 P.2d at 265-66 (citations omitted).
58
Although Kittilson only overruled Ludwig with respect to the issue of scienter, at least two federal courts have held that Ludwig no longer reflects the law in the state of Washington. See WPPSS Securities Litigation, 1986 Blue Sky Law Rptr. p 72,371 (W.D.Wash., MDL 1986); In re Melridge, Inc. Securities Litigation, No. 88-1226-JU, 1989 WL 155691, 1989 U.S.Dist. LEXIS 15363 (D.Oregon, filed Dec. 14, 1989); Contra: Naye v. Boyd, 1986-87 Blue Sky Law Rptr. (CCH) pp 72,393, 71,720 (1986). Melridge, however, provides very little analysis2 and that of WPPSS is seriously flawed. For instance, there is absolutely no reason to read Kittilson as broadly as the WPPSS court suggests.3 Additionally, the WPPSS court relied on our holding in Burgess v. Premier Corp., 727 F.2d 826, 840 (9th Cir.1984), as support for the existence of an implied private right of action: "the Burgess Court clearly intends to say that RCW 21.20.430(1) adds an express remedy to that which had previously been implied under RCW 21.20.010." 1986-87 Blue Sky Law Rptr. at 71,676. However, in Burgess we merely stated that purchasers had an implied right of action under RCW 21.20.010 prior to the 1977 amendments, but, thereafter, had an express right of action. The language used in Burgess, including our statement that the amendment "changed the remedy available for a violation of RCW 21.20.010," 727 F.2d at 840, suggests that the express right of action did not merely supplement the implied right of action, but actually replaced it. See Naye at 71,781.
59
Further, the WPPSS court inaccurately stated that
60
the Washington Legislature may be presumed to have known about the private right of action [under rule 10b-5] when the Legislature provided that the WSSA is to be construed in uniformity with the securities laws of other states and 'related federal regulation.' RCW 21.20.900.
61
WPPSS at 71,675 (emphasis added). As described above, RCW 21.20.900 actually provides that the WSSA "shall be so construed as to effectuate its purpose to make uniform the laws of those states which enact it and to coordinate the interpretation and administration of this chapter with the related federal regulation." The Washington Supreme Court has emphasized the requirement that the act "be construed so as to make state laws uniform." See Kittilson, 608 P.2d at 265-66. Therefore, in construing the act, Washington courts have looked to other states for guidance. See, e.g., id. The Washington Supreme Court has also emphasized that "[t]he coordination of the [interpretation of WSSA] with federal regulations does not require imitation by this court in construing our act, only that our construction not interfere with the federal scheme." Id. (emphasis added).
62
As the court in Naye v. Boyd observed,
63
no other jurisdiction that has adopted the Uniform Securities Act has recognized an implied right of action against issuers and insiders under an antifraud provision similar to RCW 20.21.010.
64
1986-87 Blue Sky Law Rptr. pp 72,393, 71,782 (W.D.Wash.1986). Additionally, as in Kittilson, the failure to imitate federal Rule 10b-5 in this instance does not interfere with the federal regulatory scheme.
65
In finding an implied right of action, the Shermer court filled an obvious and unexplainable gap in the coverage of the express remedies provision. No such gap exists in this case. The "CIVIL LIABILITIES" provisions under RCW 21.20.430 create express rights of action against sellers, purchasers, and other participants in a securities transaction. An implied right of action under RCW 21.20.010 is only helpful to the appellants if its scope is not limited to those already liable under RCW 21.20.430. However, the appellants have cited no state or federal case holding that an implied right of action exists under RCW 21.20.010 against anyone other than a participant in a securities transaction.4
66
Further, the language of the WSSA indicates that the legislature did not intend to impose civil liability beyond the bounds of RCW 21.20.430. In fact, the legislature has provided for criminal liability against "[a]ny person who wilfully violates any provision of this chapter...." RCW 21.20.400 (emphasis added). It has also provided for injunctive relief "[w]henever it appears to the director that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter...." RCW 21.20.390 (emphasis added). In providing for civil liability, however, it has adopted much more restrictive language, enumerating both the provisions whose violation will give rise to a damages claim and the types of persons who may be found liable. RCW 21.20.430.
67
In Ludwig the court used similar analysis in refusing to create rights of action beyond those expressly created by the legislature. The court noted that unlike certain sections of the act drafted to include violations of any provision of the securities act, RCW 21.20.430 is restrictively worded to apply only to certain enumerated offenses. The court concluded that "when enumerating in RCW 21.20.430 those statutory sections whose violation would give rise to a damages claim, it would have been a simple matter for the legislature to have included RCW 21.20.010 had that been their intent." 567 P.2d at 663. Although the legislature amended RCW 21.20.430 to include violations of RCW 21.20.010, its action did not undermine the Ludwig court's caution in implying rights of action beyond those created expressly by the legislature. In fact, in its 1975 and 1977 amendments of RCW 21.20.430, the Washington State Legislature has demonstrated its willingness and ability to correct its own omissions. "Consideration of all the circumstances influencing their decision [not to include the right of action that the appellants seek supports the] conclu[sion] that the omission was deliberate." Id. Therefore, the judgment of the district court is
68
AFFIRMED.
1
Although Clausing v. DeHart, 83 Wash.2d 70, 73, 515 P.2d 982, 984 (1973), has been cited--without analysis--as an endorsement of an implied right under RCW 21.20.010, see, e.g., Burgess v. Premier Corp., 727 F.2d 826, 840 (9th Cir.1984); Hilton v. Mumaw, 522 F.2d 588, 600 (9th Cir.1975), "there are a number of good reasons to believe that Clausing is not an endorsement of the implied right." Naye v. Boyd, 1986-87 Blue Sky Law Rptr. (CCH) p 72,393 at 71,779. For instance, the Clausing court never mentioned an implied right. Additionally, the plaintiffs, allegedly defrauded purchasers, already had an express right of action under RCW 21.20.430(1). Finally, the purchasers explicitly sought relief under Sec. .430(1). Id. (citing Clausing, 83 Wash.2d 70, 515 P.2d 982 (1973))
2
The Melridge court merely noted that the Washington Supreme Court had declined to rule on the issue in Haberman
If the Washington Supreme Court had wanted to reject the existence of an implied right of action under WSSA, it could have done so. In the absence of an express ruling, or an analysis which compels a different result, this court stands by its earlier analysis and ruling that there is an implied remedy under RCW 21.20.010.
1989 WL 155691, 1989 U.S.Dist. LEXIS 15363,--.
3
Although Kittilson dealt only with the issue of scienter, the WPPSS court held that Kittilson's conclusion that "the interpretation of RCW 21.20.010 first announced in Shermer is the better rule" also supports the existence of an implied right of action under Sec. .010. See WPPSS, 1986-87 Blue Sky Law Rptr. at pp 72,371, 71,676 (W.D.Wash., MDL 1986)
4
As the Naye court observed:
[t]here is no reported Washington case in which a court has decided that under RCW 21.20.010 there exists an implied right of action against any person other than a participant in a securities transaction.... [Similarly], [a]ll of the federal decisions cited by class plaintiffs involve claims asserted between participants in a securities transaction. The Ninth Circuit decisions purport only to recognize rights of action that are identical to express rights now available under RCW 21.20.430.
Id. at 71,780-81 (emphasis added).
In fact, the reasoning of the Washington Supreme Court in Hoffer v. State, 113 Wash.2d 148, 776 P.2d 963, 964-65 (1989) suggests that no implied right of action exists under RCW 21.20.010, at least with respect to parties who are not already liable under RCW 21.20.430 (i.e., parties who are not participants in a securities transaction). In noting the differences between federal Rule 10b-5 and RCW 21.20.430, the court observed that "adoption of a strict privity test would insulate issuers in a firm commitment underwriting from liability under WSSA...." 776 P.2d at 964-65. This would not be the case if an implied right of action existed under RCW 21.20.010 with respect to such parties.
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THE THIRTEENTH COURT OF APPEALS
13-12-00745-CR
THE STATE OF TEXAS
v.
RANDON ROMERO
On Appeal from the
25th District Court of Gonzales County, Texas
Trial Cause No. 38-12
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be reversed and the cause
remanded to the trial court. The Court orders the judgment of the trial court
REVERSED and REMANDED for further proceedings in accordance with its opinion.
We further order this decision certified below for observance.
August 28, 2014
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135 U.S. 100 (1890)
LEISY
v.
HARDIN.
No. 1459.
Supreme Court of United States.
Submitted January 6, 1890.
Decided April 28, 1890.
ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.
*107 Mr. James C. Davis for plaintiffs in error.
Mr. H. Scott Howell and Mr. W.B. Collins for defendant in error.
Mr. John Y. Stone, Attorney General for the State of Iowa, for that State.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
*108 The power vested in Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes," is the power to prescribe the rule by which that commerce is to be governed, and is a power complete in itself, acknowledging no limitations other than those prescribed in the Constitution. It is co-extensive with the subject on which it acts and cannot be stopped at the external boundary of a State, but must enter its interior and must be capable of authorizing the disposition of those articles which it introduces, so that they may become mingled with the common mass of property within the territory entered. Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419.
And while, by virtue of its jurisdiction over persons and property within its limits, a State may provide for the security of the lives, limbs, health and comfort of persons and the protection of property so situated, yet a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State, unless placed there by congressional action. Henderson v. Mayor of New York, 92 U.S. 259; Railroad Co. v. Husen, 95 U.S. 465; Walling v. Michigan, 116 U.S. 466; Robbins v. Shelby Taxing District, 120 U.S. 489. The power to regulate commerce among the States is a unit, but if particular subjects within its operation do not require the application of a general or uniform system, the States may legislate in regard to them with a view to local needs and circumstances, until Congress otherwise directs; but the power thus exercised by the States is not identical in its extent with the power to regulate commerce among the States. The power to pass laws in respect to internal commerce, inspection laws, quarantine laws, health laws and laws in relation to bridges, ferries and highways, belongs to the class of powers pertaining to locality, essential to local intercommunication, to the progress and development of local prosperity and to the protection, the safety and the welfare of society, originally necessarily belonging to, and upon the adoption of the Constitution reserved by, the States, except so far as falling within the scope of a power confided to the general government. Where the subject *109 matter requires a uniform system as between the States, the power controlling it is vested exclusively in Congress, and cannot be encroached upon by the States; but where, in relation to the subject matter, different rules may be suitable for different localities, the States may exercise powers which, though they may be said to partake of the nature of the power granted to the general government, are strictly not such, but are simply local powers, which have full operation until or unless circumscribed by the action of Congress in effectuation of the general power. Cooley v. Port Wardens of Philadelphia, 12 How. 299.
It was stated in the 32d number of the Federalist that the States might exercise concurrent and independent power in all cases but three: First, where the power was lodged exclusively in the federal constitution; second, where it was given to the United States and prohibited to the States; third, where, from the nature and subjects of the power, it must be necessarily exercised by the national government exclusively. But it is easy to see that Congress may assert an authority under one of the granted powers, which would exclude the exercise by the States upon the same subject of a different but similar power, between which and that possessed by the general government no inherent repugnancy existed.
Whenever, however, a particular power of the general government is one which must necessarily be exercised by it, and Congress remains silent, this is not only not a concession that the powers reserved by the States may be exerted as if the specific power had not been elsewhere reposed, but, on the contrary, the only legitimate conclusion is that the general government intended that power should not be affirmatively exercised, and the action of the States cannot be permitted to effect that which would be incompatible with such intention. Hence, inasmuch as interstate commerce, consisting in the transportation, purchase, sale and exchange of commodities, is national in its character, and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the States so to do, it thereby indicates its will *110 that such commerce shall be free and untrammelled. County of Mobile v. Kimball, 102 U.S. 691; Brown v. Houston, 114 U.S. 622, 631; Wabash, St. Louis &c. Railway v. Illinois, 118 U.S. 557; Robbins v. Shelby Taxing District, 120 U.S. 489, 493.
That ardent spirits, distilled liquors, ale and beer are subjects of exchange, barter and traffic, like any other commodity in which a right of traffic exists, and are so recognized by the usages of the commercial world, the laws of Congress and the decisions of courts, is not denied. Being thus articles of commerce, can a State, in the absence of legislation on the part of Congress, prohibit their importation from abroad or from a sister State? or when imported prohibit their sale by the importer? If the importation cannot be prohibited without the consent of Congress, when does property imported from abroad, or from a sister State, so become part of the common mass of property within State as to be subject to its unimpeded control?
In Brown v. Maryland (supra) the act of the state legislature drawn in question was held invalid as repugnant to the prohibition of the Constitution upon the States to lay any impost or duty upon imports or exports, and to the clause granting the power to regulate commerce; and it was laid down by the great magistrate who presided over this court for more than a third of a century, that the point of time when the prohibition ceases and the power of the State to tax commences, is not the instant when the article enters the country, but when the importer has so acted upon it that it has become incorporated and mixed up with the mass of property in the country, which happens when the original package is no longer such in his hands; that the distinction is obvious between a tax which intercepts the import as an import on its way to become incorporated with the general mass of property, and a tax which finds the article already incorporated with that mass by the act of the importer; that as to the power to regulate commerce, none of the evils which proceeded from the feebleness of the federal government contributed more to the great revolution which introduced the present system, than *111 the deep and general conviction that commerce ought to be regulated by Congress; that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States; that that power was complete in itself, acknowledged no limitations other than those prescribed by the Constitution, was co-extensive with the subject on which it acts and not to be stopped at the external boundary of a State, but must be capable of entering its interior; that the right to sell any article imported was an inseparable incident to the right to import it; and that the principles expounded in the case applied equally to importations from a sister State. Manifestly this must be so, for the same public policy applied to commerce among the States as to foreign commerce, and not a reason could be assigned for confiding the power over the one which did not conduce to establish the propriety of confiding the power over the other. Story, Constitution, § 1066. And although the precise question before us was not ruled in Gibbons v. Ogden and Brown v. Maryland, yet we think it was virtually involved and answered, and that this is demonstrated, among other cases, in Bowman v. Chicago & Northwestern Railway Co., 125 U.S. 465. In the latter case, section 1553 of the Code of the State of Iowa as amended by c. 143 of the acts of the twentieth General Assembly in 1886, forbidding common carriers to bring intoxicating liquors into the State from any other State or Territory, without first being furnished with a certificate as prescribed, was declared invalid, because essentially a regulation of commerce among the States, and not sanctioned by the authority, express or implied, of Congress. The opinion of the court, delivered by Mr. Justice Matthews, the concurring opinion of Mr. Justice Field, and the dissenting opinion by Mr. Justice Harlan, on behalf of Mr. Chief Justice Waite, Mr. Justice Gray, and himself, discussed the question involved in all its phases; and while the determination of whether the right of transportation of an article of commerce from one State to another includes by necessary implication the right of the consignee to sell it in unbroken packages at the place where the transportation terminates was in terms reserved, yet the argument of the majority *112 conducts irresistibly to that conclusion, and we think we cannot do better than repeat the grounds upon which the decision was made to rest. It is there shown that the transportation of freight or of the subjects of commerce, for the purpose of exchange or sale, is beyond all question a constituent of commerce itself; that this was the prominent idea in the minds of the framers of the Constitution, when to Congress was committed the power to regulate commerce among the several States; that the power to prevent embarrassing restrictions by any State was the end desired; that the power was given by the same words and in the same clause by which was conferred power to regulate commerce, with foreign nations; and that it would be absurd to suppose that the transmission of the subjects of trade from the State of the buyer, or from the place of production to the market, was not contemplated, for without that there could be no consummated trade, either with foreign nations or among the States. It is explained that where State laws alleged to be regulations of commerce among the States have been sustained, they were laws which related to bridges or dams across streams, wholly within the State, or police or health laws, or to subjects of a kindred nature, not strictly of commercial regulation. But the transportation of passengers or of merchandise from one State to another is in its nature national, admitting of but one regulating power; and it was to guard against the possibility of commercial embarrassments which would result if one State could directly or indirectly tax persons or property passing through it, or prohibit particular property from entrance into the State, that the power of regulating commerce among the States was conferred upon the federal government.
"If in the present case," said Mr. Justice Matthews, "the law of Iowa operated upon all merchandise sought to be brought from another State into its limits, there could be no doubt that it would be a regulation of commerce among the States," and he concludes that this must be so, though it applied only to one class of articles of a particular kind. The legislation of Congress on the subject of interstate commerce by means of railroads, designed to remove trammels *113 upon transportation between different States, and upon the subject of the transportation of passengers and merchandise, (Revised Statutes, sections 4252 to 4289, inclusive,) including the transportation of nitro-glycerine and other similar explosive substances, with the proviso that, as to them, "any State, territory, district, city or town within the United States" should not be prevented by the language used "from regulating or from prohibiting the traffic in or transportation of those substances between persons or places lying or being within their respective territorial limits, or from prohibiting the introduction thereof into such limits for sale, use or consumption therein," is referred to as indicative of the intention of Congress that the transportation of commodities between the States shall be free, except where it is positively restricted by Congress itself, or by States in particular cases by the express permission of Congress. It is said that the law in question was not an inspection law, the object of which "is to improve the quality of articles produced by the labor of a country, to fit them for exportation; or, it may be, for domestic use;" Gibbons v. Ogden, 9 Wheat. 1, 203; Turner v. Maryland, 107 U.S. 38, 55; nor could it be regarded as a regulation of quarantine or a sanitary provision for the purpose of protecting the physical health of the community; nor a law to prevent the introduction into the State of diseases, contagious, infectious, or otherwise. Articles in such a condition as tend to spread disease are not merchantable, are not legitimate subjects of trade and commerce, and the self-protecting power of each State, therefore, may be rightfully exerted against their introduction, and such exercise of power cannot be considered a regulation of commerce, prohibited by the Constitution; and the observations of Mr. Justice Catron, in The License Cases, 5 How. 504, 599, are quoted to the effect that what does not belong to commerce is within the jurisdiction of the police power of the State, but that which does belong to commerce is within the jurisdiction of the United States; that to extend the police power over subjects of commerce would be to make commerce subordinate to that power, and would enable the State to bring within the police power "any article *114 of consumption that a State might wish to exclude, whether it belonged to that which was drunk, or to food and clothing; and with nearly equal claims to propriety, as malt liquors and the products of fruits other than grapes stand on no higher ground than the light wines of this and other countries, excluded in effect by the law as it now stands. And it would be only another step to regulate real or supposed extravagance in food and clothing." And Mr. Justice Matthews thus proceeds, p. 493: "For the purpose of protecting its people against the evils of intemperance, it has the right to prohibit the manufacture within its limits of intoxicating liquors; it may also prohibit all domestic commerce in them between its own inhabitants, whether the articles are introduced from other States or from foreign countries; it may punish those who sell them in violation of its laws; it may adopt any measures tending, even indirectly and remotely, to make the policy effective until it passes the line of power delegated to Congress under the Constitution. It cannot, without the consent of Congress, express or implied, regulate commerce between its people and those of the other States of the Union in order to effect its end, however desirable such a regulation might be... . Can it be supposed that by omitting any express declaration on the subject, Congress has intended to submit to the several States the decision of the question in each locality of what shall and what shall not be articles of traffic in the interstate commerce of the country? If so, it has left to each State, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured or sold in any State and sought to be introduced as an article of commerce into any other. If the State of Iowa may prohibit the importation of intoxicating liquors from all other States, it may also include tobacco, or any other article, the use or abuse of which it may deem deleterious. It may not choose, even, to be governed by considerations growing out of the health, comfort or peace of the community. Its policy may be directed to other ends. It may choose to establish a system directed to the promotion and benefit of its own agriculture, manufactures or arts of any *115 description, and prevent the introduction and sale within its limits of any or of all articles that it may select as coming into competition with those which it seeks to protect. The police power of the State would extend to such cases, as well as to those in which it was sought to legislate in behalf of the health, peace and morals of the people. In view of the commercial anarchy and confusion that would result from the diverse exertions of power by the several States of the Union, it cannot be supposed that the Constitution or Congress have intended to limit the freedom of commercial intercourse among the people of the several States."
Many of the cases bearing upon the subject are cited and considered in these opinions, and among others The License Cases, 5 How. 504, wherein laws passed by Massachusetts, New Hampshire and Rhode Island, in reference to the sale of spirituous liquors, came under review and were sustained, although the members of the court who participated in the decisions did not concur in any common ground upon which to rest them. That of Peirce et al. v. New Hampshire is perhaps the most important to be referred to here. In that case the defendants had been fined for selling a barrel of gin in New Hampshire which they had bought in Boston and brought coastwise to Portsmouth, and there sold in the same barrel and in the same condition in which it was purchased in Massachusetts, but contrary to the law of New Hampshire in that behalf. The conclusion of the opinion of Mr. Chief Justice Taney is in these words, p. 586: "Upon the whole, therefore, the law of New Hampshire is in my judgment a valid one. For, although the gin sold was an import from another State, and Congress have clearly the power to regulate such importations, under the grant of power to regulate commerce among the several States, yet, as Congress has made no regulation on the subject, the traffic in the article may be lawfully regulated by the State as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the State may suppose to be its interest or duty to pursue."
Referring to the cases of Massachusetts and Rhode Island, *116 the Chief Justice, after saying that if the laws of those States came in collision with the laws of Congress authorizing the importation of spirits and distilled liquors, it would be the duty of the court to declare them void, thus continues, p. 576: "It has, indeed, been suggested, that, if a State deems the traffic in ardent spirits to be injurious to its citizens, and calculated to introduce immorality, vice and pauperism into the State, it may constitutionally refuse to permit its importation, notwithstanding the laws of Congress; and that a State may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence or pauperism from abroad. But it must be remembered that disease, pestilence and pauperism are not subjects of commerce, although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, as far as human foresight or human means can guard against them. But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists. And Congress, under its general power to regulate commerce with foreign nations, may prescribe what article of merchandise shall be admitted and what excluded; and may therefore admit, or not, as it shall deem best, the importation of ardent spirits. And inasmuch as the laws of Congress authorize their importation, no State has a right to prohibit their introduction... . These state laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it has passed the line of foreign commerce, and become a part of the general mass of property in the State. These laws may, indeed, discourage imports, and diminish the price which ardent spirits would otherwise bring. But although a State is bound to receive and to permit the sale by the importer of any article of merchandise which Congress authorizes to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens, although such law may discourage importation, or *117 diminish the profits of the importer, or lessen the revenue of the general government. And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper."
The New Hampshire case, the chief justice observed, differs from Brown v. Maryland, in that the latter was a case arising out of commerce with foreign nations, which Congress had regulated by law; whereas the case in hand was one of commerce between two States, in relation to which Congress had not exercised its power. "But the law of New Hampshire acts directly upon an import from one State to another, while in the hands of the importer for sale, and is therefore a regulation of commerce, acting upon the article while it is within the admitted jurisdiction of the general government, and subject to its control and regulation. The question, therefore, brought up for decision is, whether a State is prohibited by the Constitution of the United States from making any regulations of foreign commerce, or of commerce with another State, although such regulation is confined to its own territory, and made for its own convenience or interest, and does not come in conflict with any law of Congress. In other words, whether the grant of power to Congress is of itself a prohibition to the States, and renders all state laws upon the subject null and void." p. 578. He declares it to appear to him very clear, p. 579, "that the mere grant of power to the general government cannot, upon any just principles of construction, be construed to be an absolute prohibition to the exercise of any power over the same subject by the States. The controlling and supreme power over commerce with foreign nations and the several States is undoubtedly conferred upon Congress. Yet, in my judgment, the State may, nevertheless, for the safety or convenience of trade, or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors, and for its own territory; and such regulations are valid unless they come in conflict with a law *118 of Congress." He comments on the omission of any prohibition in terms, and concludes that if, as he thinks, "the framers of the Constitution (knowing that a multitude of minor regulations must be necessary, which Congress amid its great concerns could never find time to consider and provide) intended merely to make the power of the federal government supreme upon this subject over that of the States, then the omission of any prohibition is accounted for, and is consistent with the whole instrument. The supremacy of the laws of Congress, in cases of collision with state laws, is secured in the article which declares that the laws of Congress, passed in pursuance of the powers granted, shall be the supreme law; and it is only where both governments may legislate on the same subject that this article can operate." And he considers that the legislation of Congress and the States has conformed to this construction from the foundation of the government, as exemplified in state laws in relation to pilots and pilotage and health and quarantine laws.
But conceding the weight properly to be ascribed to the judicial utterances of this eminent jurist, we are constrained to say that the distinction between subjects in respect of which there can be of necessity only one system or plan of regulation for the whole country, and subjects local in their nature, and, so far as relating to commerce, mere aids rather than regulations, does not appear to us to have been sufficiently recognized by him in arriving at the conclusions announced. That distinction has been settled by repeated decisions of this court, and can no longer be regarded as open to re-examination. After all, it amounts to no more than drawing the line between the exercise of power over commerce with foreign nations and among the States and the exercise of power over purely local commerce and local concerns.
The authority of Peirce v. New Hampshire, in so far as it rests on the view that the law of New Hampshire was valid because Congress had made no regulation on the subject, must be regarded as having been distinctly overthrown by the numerous cases hereinafter referred to.
*119 The doctrine now firmly established is, as stated by Mr. Justice Field, in Bowman v. Chicago &c. Railway Co., 125 U.S. 507, "that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, the improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State into another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the States shall be unrestricted. It is only after the importation is completed, and the property imported has mingled with and become a part of the general property of the State, that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled."
The conclusion follows that, as the grant of the power to regulate commerce among the States, so far as one system is required, is exclusive, the States cannot exercise that power without the assent of Congress, and, in the absence of legislation, it is left for the courts to determine when state action does or does not amount to such exercise, or, in other words, what is or is not a regulation of such commerce. When that is determined, controversy is at an end. Illustrations exemplifying the general rule are numerous. Thus we have held the following to be regulations of interstate commerce: A tax upon freight transported from State to State, Case of the State Freight Tax, 15 Wall. 232; a statute imposing a burdensome condition *120 on ship-masters as a prerequisite to the landing of passengers, Henderson v. Mayor of New York, 92 U.S. 259; a statute prohibiting the driving or conveying of any Texas, Mexican or Indian cattle, whether sound or diseased, into the State between the first day of March and the first day of November in each year, Railroad Co. v. Husen, 95 U.S. 465; a statute requiring every auctioneer to collect and pay into the state treasury a tax on his sales, when applied to imported goods in the original packages by him sold for the importer, Cook v. Pennsylvania, 97 U.S. 566; a statute intended to regulate or tax, or to impose any other restriction upon, the transmission of persons or property, or telegraphic messages, from one State to another, Wabash, St. Louis &c. Railway v. Illinois, 118 U.S. 557; a statute levying a tax upon non-resident drummers offering for sale or selling goods, wares or merchandise by sample, manufactured or belonging to citizens of other States, Robbins v. Shelby Taxing District, 120 U.S. 489.
On the other hand, we have decided, in County of Mobile v. Kimball, 102 U.S. 691, that a state statute providing for the improvement of the river, bay and harbor of Mobile, since what was authorized to be done was only as a mere aid to commerce, was, in the absence of action by Congress, not in conflict with the Constitution; in Escanaba Co. v. Chicago, 107 U.S. 678, that the State of Illinois could lawfully authorize the city of Chicago to deepen, widen and change the channel of, and construct bridges over, the Chicago River; in Transportation Co. v. Parkersburg, 107 U.S. 691, that the jurisdiction and control of wharves properly belong to the States in which they are situated unless otherwise provided; in Brown v. Houston, 114 U.S. 622, that a general state tax laid alike upon all property is not unconstitutional, because it happens to fall upon goods which, though not then intended for exportation, are subsequently exported; in Morgan Steamship Co. v. Louisiana Board of Health, 118 U.S. 455, that a state law, requiring each vessel passing a quarantine station to pay a fee for examination as to her sanitary condition and the ports from which she came, was a rightful exercise *121 of police power; in Smith v. Alabama, 124 U.S. 465, and in Nashville &c. Railway Co. v. Alabama, 128 U.S. 96, that a state statute requiring locomotive engineers to be examined and obtain a license was not in its nature a regulation of commerce; and in Kimmish v. Ball, 129 U.S. 217, that a statute providing that a person having in his possession Texas cattle, which had not been wintered north of the southern boundary of Missouri at least one winter, shall be liable for any damages which may accrue from allowing them to run at large, and thereby spread the disease known as the Texas fever, was constitutional.
We held also in Welton v. The State of Missouri, 91 U.S. 275, that a state statute requiring the payment of a license tax from persons dealing in goods, wares and merchandise, which are not the growth, produce or manufacture of the State, by going from place to place to sell the same in the State, and requiring no such license tax from persons selling in a similar way goods which are the growth, produce or manufacture of the State, is an unconstitutional regulation; and to the same effect in Walling v. Michigan, 116 U.S. 446, in relation to a tax upon non-resident sellers of intoxicating liquors to be shipped into a State from places without it. But it was held in Patterson v. Kentucky, 97 U.S. 501, and in Webber v. Virginia, 103 U.S. 344, that the right conferred by the patent laws of the United States did not remove the tangible property in which an invention might take form from the operation of the laws of the State, nor restrict the power of the latter to protect the community from direct danger inherent in particular articles.
In Mugler v. Kansas, 123 U.S. 623, it was adjudged that "state legislation which prohibits the manufacture of spirituous, malt, vinous, fermented or other intoxicating liquors within the limits of the State, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege or immunity secured by the Constitution of the United States, or by the amendments thereto." And this was in accordance with our decisions in Bartemeyer v. Iowa, 18 Wall. 129; Beer Company v. Massachusetts, 97 U.S. *122 25; and Foster v. Kansas, 112 U.S. 201. So in Kidd v. Pearson, 128 U.S. 1, it was held that a state statute which provided (1) that foreign intoxicating liquors may be imported into the State, and there kept for sale by the importer, in the original packages, or for transportation in such packages and sale beyond the limits of the State; and (2) that intoxicating liquors may be manufactured and sold within the State for mechanical, medicinal, culinary and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the State, was not an undertaking to regulate commerce among the States. And in Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 40, we affirmed the judgment of the Supreme Court of Iowa, sustaining the sentence of the district court of Plymouth in that State, imposing a fine of $500 and costs, and imprisonment in jail for three months, if the fine was not paid within thirty days, as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining the defendant from selling or keeping for sale any intoxicating liquors, including ale, wine and beer, in Plymouth County. Mr. Justice Miller there remarked: "If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of a court to prevent the evil, as to punish the offence as a crime after it has been committed."
These decisions rest upon the undoubted right of the States of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the national *123 government; but whenever the law of the State amounts essentially to a regulation of commerce with foreign nations or among the States, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity or its disposition before it has ceased to become an article of trade between one State and another, or another country and this, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void.
In Mugler v. Kansas, supra, the court said (p. 662) that it could not "shut out of view the fact, within the knowledge of all, that the public health, the public morals and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the country are, in some degree at least, traceable to this evil." And that "if in the judgment of the legislature [of a State] the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question... . Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage." Undoubtedly, it is for the legislative branch of the state governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a State may properly adopt as appropriate or needful for the protection of the public morals, the public health or the public safety; but notwithstanding it is not vested with supervisory power over matters of local administration the responsibility is upon Congress, so far as the *124 regulation of interstate commerce is concerned, to remove the restriction upon the State in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action.
Prior to 1888 the statutes of Iowa permitted the sale of foreign liquors imported under the laws of the United States, provided the sale was by the importer in the original casks or packages, and in quantities not less than those in which they were required to be imported; and the provisions of the statute to this effect were declared by the Supreme Court of Iowa, in Pearson v. International Distillery, 72 Iowa, 348, 354, to be "intended to conform the statute to the doctrine of the United States Supreme Court, announced in Brown v. Maryland, 12 Wheat. 419, and License Cases, 5 How. 504, so that the statute should not conflict with the laws and authority of the United States." But that provision of the statute was repealed in 1888, and the law so far amended that we understand it now to provide that, whether imported or not, wine cannot be sold in Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes, nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal purposes, and not at all except by citizens of the State of Iowa, who are registered pharmacists and have permits obtained as prescribed by the statute, a permit being also grantable to one discreet person in any township where a pharmacist does not obtain it.
The plaintiffs in error are citizens of Illinois, are not pharmacists, and have no permit, but import into Iowa beer, which they sell in original packages, as described. Under our decision in Bowman v. Chicago &c. Railway Co., supra, they had the right to import this beer into that State, and in the view which we have expressed they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State. Up to that point of time, we hold that in the absence of congressional permission to do so, the State had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign *125 or non-resident importer. Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character; although, at the same time, if directly dangerous in themselves, the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a State, represented in the state legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create. Undoubtedly, there is difficulty in drawing the line between the municipal powers of the one government and the commercial powers of the other, but when that line is determined, in the particular instance, accommodation to it, without serious inconvenience, may readily be found, to use the language of Mr. Justice Johnson, in Gibbons v. Ogden, 9 Wheat. 1, 238, in "a frank and candid coöperation for the general good."
The legislation in question is to the extent indicated repugnant to the third clause of section 8 of Art. 1 of the Constitution of the United States, and therefore the judgment of the Supreme Court of Iowa is
Reversed and the cause remanded for further proceedings not inconsistent with this opinion.
MR. JUSTICE GRAY, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE BREWER, dissenting.
Mr. Justice Harlan, Mr. Justice Brewer and myself are unable to concur in this judgment. As our dissent is based on *126 the previous decisions of this court, the respect due to our associates, as well as to our predecessors, induces us to state our position, as far as possible, in the words in which the law has been heretofore declared from this bench.
The facts of the case, and the substance of the statutes whose validity is drawn in question, may be briefly stated.
It was an action of replevin of sundry kegs and cases of beer, begun in an inferior court of the State of Iowa against a constable of Lee County in Iowa, who had seized them at Keokuk in that county under a search-warrant issued by a justice of the peace pursuant to the statutes of Iowa, which prohibit the sale, the keeping for sale, or the manufacture for sale, of any intoxicating liquor (including malt liquor) for any purpose whatever, except for pharmaceutical, medicinal, chemical or sacramental purposes, and under an annual license granted by the district court of the proper county, upon being satisfied that the applicant is a citizen of the United States and of the State of Iowa, and a resident of the county, and otherwise qualified.
The plaintiffs were citizens and residents of the State of Illinois, engaged as brewers in manufacturing beer at Peoria in that State, and in selling it in the States of Illinois and Iowa. The beer in question was manufactured by them at Peoria, and there put up by them in said kegs and cases; each keg being sealed, and having upon it, over the plug at the opening, a United States internal revenue stamp; and each case being substantially made of wood, containing two dozen quart bottles of beer, and sealed with a metallic seal which had to be broken in order to open the case. The kegs and cases owned by the plaintiffs, and so sealed, were transported by them from Peoria by railway to Keokuk, and there sold and offered for sale by their agent, in a building owned by one of them, and without breaking or opening the kegs or cases.
The Supreme Court of Iowa having given judgment for the defendant, the question presented by this writ of error is whether the statutes of Iowa, as applied to these facts, contravene section 8 of article 1, or section 2 of article 4 of the Constitution of the United States, or section 1 of article 14 of the Amendments to the Constitution.
*127 By section 8 of article 1 of the Constitution, "the Congress shall have power," among other things, "to regulate commerce with foreign nations, and among the several States," and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
By section 2 of article 4, "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
By section 1 of the Fourteenth Amendment, "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."
By the Tenth Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Among the powers thus reserved to the several States is what is commonly called the police power that inherent and necessary power, essential to the very existence of civil society, and the safeguard of the inhabitants of the State against disorder, disease, poverty and crime.
"The police power belonging to the States in virtue of their general sovereignty," said Mr. Justice Story, delivering the judgment of this court, "extends over all subjects within the territorial limits of the States; and has never been conceded to the United States." Prigg v. Pennsylvania, 16 Pet. 539, 625. This is well illustrated by the recent adjudications that a statute prohibiting the sale of illuminating oils below a certain fire-test is beyond the constitutional power of Congress to enact, except so far as it has effect within the United States (as, for instance, in the District of Columbia) and without the limits of any State; but that it is within the constitutional power of a State to pass such a statute, even as to oils manufactured under letters patent from the United States. United States v. Dewitt, 9 Wall. 41; Patterson v. Kentucky, 97 U.S. 501.
*128 The police power includes all measures for the protection of the life, the health, the property and the welfare of the inhabitants, and for the promotion of good order and the public morals. It covers the suppression of nuisances, whether injurious to the public health, like unwholesome trades, or to the public morals, like gambling houses and lottery tickets. Slaughterhouse Cases, 16 Wall. 36, 62, 87; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Phalan v. Virginia, How. 163, 168; Stone v. Mississippi, 101 U.S. 814.
This power, being essential to the maintenance of the authority of local government, and to the safety and welfare of the people, is inalienable. As was said by Chief Justice Waite, referring to earlier decisions to the same effect, "No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." Stone v. Mississippi, 101 U.S. 814, 819. See also Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 753; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 672; New Orleans v. Houston, 119 U.S. 265, 275.
The police power extends not only to things intrinsically dangerous to the public health, such as infected rags or diseased meat, but to things which, when used in a lawful manner, are subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the life, the health or the morals of the people. Gunpowder, for instance, is a subject of commerce and of lawful use, yet, because of its explosive and dangerous quality, all admit that the State may regulate its keeping and sale. And there is no article, the right of the State to control or to prohibit the sale or manufacture of which within its limits is better established, than *129 intoxicating liquors. License Cases, 5 How. 504; Downham v. Alexandria Council, 10 Wall. 173; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Tiernan v. Rinker, 102 U.S. 123; Foster v. Kansas, 112 U.S. 201; Mugler v. Kansas and Kansas v. Ziebold, 123 U.S. 623; Kidd v. Pearson, 128 U.S. 1; Eilenbecker v. Plymouth County Court, 134 U.S. 31.
In Beer Co. v. Massachusetts, above cited, this court, affirming the judgment of the Supreme Judicial Court of Massachusetts, reported in 115 Mass. 153, held that a statute of the State, prohibiting the manufacture and sale of intoxicating liquors, including malt liquors, except as therein provided, applied to a corporation which the State had long before chartered, and authorized to hold real and personal property, for the purpose of manufacturing malt liquors. Among the reasons assigned by this court for its judgment, were the following:
"If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State."
"Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. The legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex; and they are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself."
"Since we have already held, in the case of Bartemeyer v. Iowa, that as a measure of police regulation, looking to the *130 preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution of the United States, we see nothing in the present case that can afford any sufficient ground for disturbing the decision of the Supreme Court of Massachusetts." 97 U.S. 32, 33.
In Mugler v. Kansas and Kansas v. Ziebold, above cited, a statute of Kansas, prohibiting the manufacture or sale of intoxicating liquors as a beverage, and declaring all places, where such liquors were manufactured or sold in violation of the statute, to be common nuisances, and prohibiting their future use for the purpose, was held to be a valid exercise of the police power of the State, even as applied to persons who, long before the passage of the statute, had constructed buildings specially adapted to such manufacture.
It has also been adjudged that neither the grant of a license to sell intoxicating liquors, nor the payment of a tax on such liquors, under the internal revenue laws of the United States, affords any defence to an indictment by a State for selling the same liquors contrary to its statutes. License Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475.
The clause of the Constitution, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," has no bearing upon this case. The privileges and immunities thus secured are those fundamental rights and privileges which appertain to citizenship. Conner v. Elliott, 18 How. 591, 593; Curtis, J., in Scott v. Sandford, 19 How. 393, 580; Paul v. Virginia, 8 Wall. 168, 180; McCready v. Virginia, 94 U.S. 391, 395. As observed by the court in Bartemeyer v. Iowa, "The right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States." 18 Wall. 133.
Nor is the case affected by the Fourteenth Amendment of the Constitution. As was said in the unanimous opinion of this court in Barbier v. Connolly, after stating the true scope of that amendment, "But neither the amendment broad and comprehensive as it is nor any other amendment, was *131 designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity." 113 U.S. 27, 31. Upon that ground, the amendment has been adjudged not to apply to a state statute prohibiting the sale or manufacture of intoxicating liquors in buildings long before constructed for the purpose, or the sale of oleomargarine lawfully manufactured before the passage of the statute. Mugler v. Kansas, 123 U.S. 623, 663; Powell v. Pennsylvania, 127 U.S. 678, 683, 687.
The remaining and the principal question is, whether the statute of Iowa, as applied to the sale within that State of intoxicating liquors in the same cases or kegs, unbroken and unopened, in which they were brought by the seller from another State, is repugnant to the clause of the Constitution granting to Congress the power to regulate commerce with foreign nations and among the several States.
In the great and leading case of Gibbons v. Ogden, 9 Wheat. 1, the point decided was that acts of the legislature of New York, granting to certain persons for a term of years the exclusive navigation by steamboats of all waters within the jurisdiction of the State, were, so far as they affected such navigation by vessels of other persons licensed under the laws of the United States, repugnant to the clause of the Constitution empowering Congress to regulate foreign and interstate commerce.
Chief Justice Marshall, in delivering judgment, after speaking of the inspection laws of the States, and observing that they had a remote and considerable influence on commerce, but that the power to pass them was not derived from a power to regulate commerce, said: "They form a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating *132 the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given." pp. 203, 204. Again; he said that quarantine and health laws "are considered as flowing from the acknowledged power of a State, to provide for the health of its citizens," and that the constitutionality of such laws had never been denied. p. 205.
Mr. Justice Johnson, in his concurring opinion, said: "It is no objection to the existence of distinct, substantive powers, that, in their application, they bear upon the same subject. The same bale of goods, the same cask of provisions, or the same ship, that may be the subject of commercial regulation, may also be the vehicle of disease. And the health laws that require them to be stopped and ventilated are no more intended as regulations on commerce, than the laws which permit their importation are intended to inoculate the community with disease. Their different purposes mark the distinction between the powers brought into action; and while frankly exercised, they can produce no serious collision." p. 235.
That Chief Justice Marshall and his associates did not consider the constitutional grant of power to Congress to regulate foreign and interstate commerce as, of its own force, and without national legislation, impairing the police power of each State within its own borders to protect the health and welfare of its inhabitants, is clearly indicated in the passages above quoted from the opinions in Gibbons v. Ogden, and is conclusively proved by the unanimous judgment of the court delivered by the Chief Justice five years later in Willson v. Blackbird Creek Marsh Co., 2 Pet. 245.
In that case, the legislature of Delaware had authorized a dam to be erected across a navigable tide-water creek which opened into Delaware Bay, thereby obstructing the navigation of the creek by a vessel enrolled and licensed under the navigation *133 laws of the United States. The decision in Gibbons v. Ogden was cited by counsel, as conclusive against the validity of the statute of the State. But its validity was upheld by the court, for the following reasons:
"The act of assembly, by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.
"The counsel for the plaintiffs in error insists that it comes in conflict with the power of the United States `to regulate commerce with foreign nations and among the several States.'
"If Congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question.
"We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as *134 repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject." 2 Pet. 251, 252.
In Brown v. Maryland, 12 Wheat. 419, the point decided was that an act of the legislature of Maryland, requiring all importers of foreign goods by the bale or package, or of spirituous liquors, and "other persons selling the same by wholesale, bale or package, hogshead, barrel or tierce," to first take out a license and pay fifty dollars for it, and imposing a penalty for failure to do so, was, as applied to sales by an importer of foreign liquors in the original packages, unconstitutional, both as laying an impost, and as repugnant to the power of Congress to regulate foreign commerce.
The statute there in question was evidently enacted to raise revenue from importers of foreign goods of every description, and not as an exercise of the police power of the State. And Chief Justice Marshall, in answering an argument of counsel, expressly admitted that the power to direct the removal of gunpowder, or the removal or destruction of infectious or unsound articles which endanger the public health, "is a branch of the police power, which unquestionably remains, and ought to remain, with the States." pp. 443, 444.
Moreover, the question there presented and decided concerned foreign commerce only, and not commerce among the States. Chief Justice Marshall, at the outset of his opinion, so defined it, saying: "The cause depends entirely on the question, whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported." p. 436.
It is true, that, after discussing and deciding that question, he threw out this brief remark: "It may be proper to add, that we suppose the principles laid down in this case, to apply equally to importations from a sister State." p. 449. But this remark was obiter dictum, wholly aside from the question before the court and having no bearing on its decision, and therefore extrajudicial, as has since been noted by Chief Justice Taney and Mr. Justice McLean in the License Cases, *135 5 How. 504, 575, 578, 594, and by Mr. Justice Miller in Woodruff v. Parham, 8 Wall. 123, 139.
To a remark made under such circumstances are peculiarly applicable the warning words of Chief Justice Marshall himself in an earlier case, where, having occasion to explain away some dicta of his own in delivering judgment in Marbury v. Madison, 1 Cranch, 137, he said: "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, 6 Wheat. 264, 399, 400. Another striking instance in which that maxim has been applied and acted on is to be found in the opinion of the court at the present term in Hans v. Louisiana, 134 U.S. 1, 20.
But the unanimous judgment of this court in 1847 in Peirce v. New Hampshire, reported together with Thurlow v. Massachusetts and Fletcher v. Rhode Island as the License Cases, 5 How. 504, is directly in point, and appears to us conclusively to govern the case at bar. Those cases were elaborately argued by eminent counsel, and deliberately considered by the court, and Chief Justice Taney, as well as each of six associate justices, stated his reasons for concurring in the judgment.
The cases from Massachusetts and Rhode Island arose under statutes of either State, prohibiting sales of spirituous liquors by any person, in less than certain quantities, without first having obtained an annual license from municipal officers; in the one case, from county commissioners, who, by the express terms of the statute, were not required to grant any licenses when in their opinion the public good did not require them to be granted; and in the other case, from a town council, who *136 were forbidden to grant licenses whenever the voters of the town in town meeting decided that none should be granted. Mass. Rev. Stat. 1836, c. 47, §§ 3, 17, 23-25; Stat. 1837, c. 42, § 2; R.I. Pub. Laws of 1844, p. 496, § 4; Laws of 1845, p. 72; 5 How. 506-510, 540. Those statutes were held to be constitutional, as applied to foreign liquors which had passed out of the hands of the importer; while it was assumed that, under the decision in Brown v. Maryland, those statutes could be allowed no effect as to such liquors while they remained in the hands of the importer in the original packages upon which duties had been paid to the United States. 5 How. 576, 590, 610, 618.
The case of Peirce v. New Hampshire directly involved the validity, as applied to liquors brought in from another State, of a statute of New Hampshire, which imposed a penalty on any person selling any wine, rum, gin, brandy or other spirits, in any quantity, "without license from the selectmen of the town or place where such person resides." N.H. Laws of 1838, c. 369; 5 How. 555. The plaintiffs in error, having been indicted under that statute for selling to one Aaron Sias in the town of Dover in the State of New Hampshire one barrel of gin, without license from the selectmen of the town, at the trial admitted that they so sold to him a barrel of American gin; and introduced evidence that "the barrel of gin was purchased by the defendants in Boston in the Commonwealth of Massachusetts, brought coastwise to the landing at Piscataqua Bridge, and from thence to the defendant's store in Dover, and afterwards sold to Sias in the same barrel and in the same condition in which it was purchased in Massachusetts." The defendants contended that the statute was unconstitutional, because it was "in violation of certain public treaties of the United States with Holland, France and other countries, containing stipulations for the admission of spirits into the United States;" and because it was repugnant to the clauses of the Constitution of the United States restricting the power of the States to lay duties on imports or exports, and granting the power to Congress to regulate commerce with foreign nations and among the several States. Chief Justice Parker *137 instructed the jury "that this State could not regulate commerce between this and other States; that this State could not prohibit the introduction of articles from another State with such a view, nor prohibit a sale of them with such a purpose; but that, although the State could not make such laws with such views and for such purposes, she was not entirely forbidden to legislate in relation to articles introduced from foreign countries or from other States; that she might tax them the same as other property, and might regulate the sale to some extent; that a State might pass health and police laws, which would, to a certain extent, affect foreign-commerce and commerce between the States; and that this statute was a regulation of that character, and constitutional." After a verdict of guilty, exceptions to this instruction were overruled by the highest court of the State. 5 How. 554-557; 13 N.H. 536.
In that case, as in the case at bar, the statute of the State prohibited sales of intoxicating liquors by any person without a license from municipal authorities, and authorized licenses to be granted only to persons residing within the State; and the liquors were sold within the State by the importer, and in the same barrel, keg or case, unbroken and in the same condition, in which he had brought them from another State. Yet the judgment of the highest court of New Hampshire was unanimously affirmed by this court.
Chief Justice Taney, Mr. Justice Catron and Mr. Justice Nelson were of opinion that the statute of New Hampshire was a regulation of interstate commerce, but yet valid so long as it was not in conflict with any act of Congress.
Chief Justice Taney, after recognizing that "spirits and distilled liquors are universally, admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists; and Congress, under its general power to regulate commerce with foreign nations, may prescribe what article of merchandise shall be admitted and what excluded, and may therefore admit, or not, as it shall deem best, the importation of ardent spirits; and inasmuch as the laws of Congress authorize their importation, no State has a *138 right to prohibit their introduction;" and yet upholding the validity of the statutes of Massachusetts and Rhode Island, as not interfering with the trade in ardent spirits while they remained a part of foreign commerce, and were in the hands of the importer for sale, in the cask or vessel in which the laws of Congress authorized them to be imported; p. 577; proceeded to state the case from New Hampshire as follows:
"The present case, however, differs from Brown v. Maryland in this: that the former was one arising out of commerce with foreign nations, which Congress has regulated by law; whereas the present is a case of commerce between two States, in relation to which Congress has not exercised its power. Some acts of Congress have indeed been referred to in relation to the coasting trade. But they are evidently intended merely to prevent smuggling, and do not regulate imports or exports from one State to another. This case differs also from the cases of Massachusetts and Rhode Island; because, in these two cases, the laws of the States operated upon the articles after they had passed beyond the limits of foreign commerce, and consequently were beyond the control and power of Congress. But the law of New Hampshire acts directly upon an import from one State to another, while in the hands of the importer for sale, and is therefore a regulation of commerce, acting upon the article while it is within the admitted jurisdiction of the general government, and subject to its control and regulation." p. 578. And he concluded his opinion thus: "Upon the whole, therefore, the law of New Hampshire is, in my judgment, a valid one. For, although the gin sold was an import from another State, and Congress has clearly the power to regulate such importations, under the grant of power to regulate commerce among the several States, yet, as Congress has made no regulation on the subject, the traffic in the article may be lawfully regulated by the State as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the State may suppose to be its interest or duty to pursue." p. 586.
Mr. Justice Catron expressed similar views. While he was *139 of opinion that the ultimate right of determining what commodities might be lawful subjects of interstate commerce belonged to Congress in the exercise of its power to regulate commerce, and not to the States in the exercise of the police power, he was equally clear that the statute of New Hampshire was a valid regulation, in the absence of any legislation upon the subject by Congress. After pointing out the difficulties standing in the way of any attempt by Congress to make the special and various regulations required at different places at the maritime or inland borders of the States, he said: "I admit that this condition of things does not settle the question of contested power; but it satisfactorily shows that Congress cannot do what the States have done, are doing and must continue to do, from a controlling necessity, even should the exclusive power in Congress be maintained by our decision." p. 606. "Congress has stood by for nearly sixty years, and seen the States regulate the commerce of the whole country, more or less, at the ports of entry and at all their borders, without objection; and for this court now to decide that the power did not exist in the States, and that all they had done in this respect was void from the beginning, would overthrow and annul entire codes of state legislation on the particular subject. We would by our decision expunge more state laws and city corporate regulations than Congress is likely to make in a century on the same subject; and on no better assumption than that Congress and the state legislatures had been altogether mistaken as to their respective powers for fifty years and more. If long usage, general acquiescence and the absence of complaint can settle the interpretation of the clause in question, then it should be deemed as settled in conformity to the usage by the courts." p. 607. And finally, in summing up his conclusions, he said: "That the law of New Hampshire was a regulation of commerce among the States in regard to the article for selling of which the defendants were indicted and convicted; but that the state law was constitutionally passed, because of the power of the State thus to regulate; there being no regulation of Congress, special or general, in existence, to which the state law was repugnant." pp. 608, 609.
*140 Mr. Justice Nelson expressed his concurrence in the opinions delivered by the Chief Justice and Mr. Justice Catron. p. 618.
Justices McLean, Daniel, Woodbury and Grier, on the other hand, were of opinion that the license laws of New Hampshire, as well as those of Massachusetts and Rhode Island, were merely police regulations and not regulations of commerce, although they might incidentally affect commerce.
Mr. Justice McLean, in the course of his opinion in Thurlow v. Massachusetts, said: "The license acts of Massachusetts do not purport to be a regulation of commerce. They are essentially police laws. Enactments similar in principle are common to all the States. Since the adoption of its constitution they have existed in Massachusetts." p. 588. [Mass. Stats. 1786, c. 68; 1792, c. 25; 7 Dane Ab. 43, 44.] "It is the settled construction of every regulation of commerce, that, under the sanction of its general laws, no person can introduce into a community malignant diseases, or anything which contaminates its morals, or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals in the enjoyment of their own rights must be careful not to injure the rights of others. From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are always implied in commercial regulations, where the general government is admitted to have the exclusive power. They are not regulations of commerce, but acts of self-preservation. And though they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the State." pp. 589, 590. "A discretion on this subject must be exercised somewhere, and it can be exercised nowhere but under the state authority. The State may regulate the sale of foreign spirits, and such regulation is valid, though it reduce the quantity of spirits consumed. This is admitted. And how can this discretion be controlled? The powers of the general government do not extend to it. It is in every *141 aspect a local regulation, and relates exclusively to the internal police of the State." p. 591. "The police power of a State and the foreign commercial power of Congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct and independent, and are essential to both governments." p. 592.
In his opinion in Peirce v. New Hampshire, he declared that the same views were equally applicable to that case; and added: "The tax in the form of a license, as here presented, counteracts no policy of the federal government, is repugnant to no power it can exercise, and is imposed by the exercise of an undoubted power in the State. The license system is a police regulation, and, as modified in the State of New Hampshire, was designed to restrain and prevent immoral indulgence, and to advance the moral and physical welfare of society." "If this tax had been laid on the property as an import into the State, the law would have been repugnant to the Constitution. It would have been a regulation of commerce among the States, which has been exclusively given to Congress." "But this barrel of gin, like all other property within the State of New Hampshire, was liable to taxation by the State. It comes under the general regulation, and cannot be sold without a license. The right of an importer of ardent spirits to sell in the cask, without a license, does not attach to the plaintiffs in error, on account of their having transported this property from Massachusetts to New Hampshire." pp. 595, 596.
Mr. Justice Daniel said: "The license laws of Massachusetts, Rhode Island and New Hampshire, now under review, impose no exaction on foreign commerce. They are laws simply determining the mode in which a particular commodity may be circulated within the respective jurisdictions of those States, vesting in their domestic tribunals a discretion in selecting the agents for such circulation, without discriminating between the sources whence commodities may have been derived. They do not restrict importation to any extent; they do not interfere with it, either in appearance or reality; *142 they do not prohibit sales, either by wholesale or retail; they assert only the power of regulating the latter, but this entirely within the sphere of their peculiar authority. These laws are, therefore, in violation neither of the Constitution of the United States, nor of any law nor treaty made in pursuance or under authority of the Constitution." p. 617.
Mr. Justice Woodbury repeated and enforced the same views, saying, among other things: "It is manifest, also, whether as an abstract proposition or practical measure, that a prohibition to import is one thing, while a prohibition to sell without license is another and entirely different. The first would operate on foreign commerce, on the voyage. The latter affects only the internal business of the State after the foreign importation is completed and on shore." p. 619. "The subject of buying and selling within a State is one as exclusively belonging to the power of the State over its internal trade, as that to regulate foreign commerce is with the general government, under the broadest construction of that power." "The idea, too, that a prohibition to sell would be tantamount to a prohibition to import does not seem to me either logical or founded in fact. For, even under a prohibition to sell, a person could import, as he often does, for his own consumption and that of his family and plantations; and also, if a merchant extensively engaged in commerce, often does import articles, with no view of selling them here, but of storing them for a higher and more suitable market in another State, or abroad." p. 620. "But this license is a regulation neither of domestic commerce between the States, nor of foreign commerce. It does not operate on either, or the imports of either, till they have entered the State and become component parts of its property. Then it has by the Constitution the exclusive power to regulate its own internal commerce and business in such articles, and bind all residents, citizens or not, by its regulations, if they ask its protection and privileges; and Congress, instead of being opposed and thwarted by regulations as to this, can no more interfere in it than the States can interfere in regulation of foreign commerce." p. 625. "Whether such laws of the States as to *143 licenses are to be classed as police measures, or as regulations of their internal commerce, or as taxation merely, imposed on local property and local business, and are to be justified by each or by all of them together, is of little consequence, if they are laws which from their nature and object must belong to all sovereign States. Call them by whatever name, if they are necessary to the well being and independence of all communities, they remain among the reserved rights of the States, no express grant of them to the general government having been either proper, or apparently embraced in the Constitution. So, whether they conflict or not, indirectly and slightly, with some regulations of foreign commerce, after the subject matter of that commerce touches the soil or waters within the limits of a State, is not perhaps very material, if they do not really relate to that commerce, or any other topic within the jurisdiction of the general government." p. 627.
Mr. Justice Grier did not consider the question of the exclusiveness of the power of Congress to regulate foreign and interstate commerce as involved in the decision, but maintained the validity of the statutes in question under "the police power, which is exclusively in the States." pp. 631, 632.
The other members of the court at that time were Mr. Justice Wayne and Mr. Justice McKinley, who do not appear by the report to have taken part in the decision of those cases, although the former appears at page 545 to have been present at the argument, and by the clerk's minutes to have been upon the bench when the judgments were delivered. It is certain that neither of them dissented from the decision of the court.
The consequences of an opposite conclusion in the case from New Hampshire, regarding liquors brought from one State into another, were forcibly stated by several of the judges.
Mr. Justice McLean said: "If the mere conveyance of property from one State to another shall exempt it from taxation, and from general state regulation, it will not be difficult to avoid the police laws of any State, especially by those who live at or near the boundary." p. 595.
Mr. Justice Catron said: "To hold that the state license *144 law was void, as respects spirits coming in from other States as articles of commerce, would open the door to an almost entire evasion, as the spirits might be introduced in the smallest divisible quantities that the retail trade would require; the consequence of which would be, that the dealers in New Hampshire would sell only spirits produced in other States, and that the products of New Hampshire would find an unrestrained market in the neighboring States having similar license laws to those of New Hampshire." p. 608.
Mr. Justice Woodbury said: "If the proposition was maintainable, that, without any legislation by Congress as to the trade between the States, (except that in coasting, as before explained, to prevent smuggling,) anything imported from another State, foreign or domestic, could be sold of right in the package in which it was imported, not subject to any license or internal regulation of a State, then it is obvious that the whole license system may be evaded and nullified, either from abroad, or from a neighboring State. And the more especially can it be done from the latter, as imports may be made in bottles of any size, down to half a pint, of spirits or wines; and if its sale cannot be interfered with and regulated, the retail business can be carried on in any small quantity, and by the most irresponsible and unsuitable persons, with perfect impunity." pp. 625, 626.
Mr. Justice Grier, in an opinion marked by his characteristic vigor and directness of thought and expression, (after saying that he mainly concurred with Mr. Justice McLean,) summed up the whole matter as follows:
"The true question presented by these cases, and one which I am not disposed to evade, is, whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism and crime. I do not consider the question of the exclusiveness of the power of Congress to regulate commerce as necessarily connected with the decision of this point.
"It has been frequently decided by this court, `that the powers which relate to merely municipal regulations, or what *145 may more properly be called internal police, are not surrendered by the States, or restrained by the Constitution of the United States; and that, consequently, in relation to these, the authority of a State is complete, unqualified and exclusive.' Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed, that every law for the restraint and punishment of crime, for the preservation of the public peace, health and morals, must come within this category.
"As subjects of legislation, they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience or luxury; to recede, when they come in conflict or collision, `salus populi suprema lex.'
"If the right to control these subjects be `complete, unqualified and exclusive' in the state legislatures, no regulations of secondary importance can supersede or restrain their operations, on any ground of prerogative or supremacy. The exigencies of the social compact require that such laws be executed before and above all others.
"It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers; they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned and punished for their offences against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to interfere with the regulations of Congress, but because police laws for the preservation of health, prevention of crime and protection of the public welfare, must of necessity have full and free operation, according to the exigency which requires their interference.
*146 "It is not necessary, for the sake of justifying the state legislation now under consideration, to array the appalling statistics of misery, pauperism and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority. There is no conflict of power, or of legislation, as between the States and the United States; each is acting within its sphere, and for the public good; and if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be the gainer a thousand fold in the health, wealth and happiness of the people." pp. 631, 632.
This abstract of the License Cases shows (what is made yet clearer by an attentive reading of the opinions as a whole) that the difference of opinion among the judges was upon the question whether the state statutes, which all agreed had some influence upon commerce, and all agreed were valid exercises of the police power, could properly be called regulations of commerce.
While many of the judges said or assumed that a State could not restrict the sale by the importer and in the original packages of intoxicating liquors imported from a foreign country, which Congress had authorized the importation of, and had caused duties to be levied upon; all of them undoubtingly held that, where Congress had not legislated, a State might, for the protection of the health, the morals and the safety of its inhabitants, restrict or prohibit, at its discretion and according to its own views of policy, the sale by the importer of intoxicating liquors brought into it from another State, and remaining in the barrels or packages in which they were brought in.
The ability and thoroughness with which those cases were argued at the bar and on the bench, the care and thought bestowed upon their consideration, as manifested in the opinions delivered by the several judges, and the confidence with which each judge expressed his concurrence in the result, make *147 the decision of the highest possible authority. It has been accepted and acted on as such by the legislatures, the courts and the people, of the nation and of the States, for forty years. It has not been touched by any act of Congress; it has guided the legislation of many of the States; and it has been treated as beyond question by this court in a long series of cases. Veazie v. Moor (1852), 14 How. 568, 575; Sinnot v. Davenport (1859), 22 How. 227, 243; Gilman v. Philadelphia (1865), 3 Wall. 713, 730; Pervear v. Commonwealth (1866), 5 Wall. 475, 479; Woodruff v. Parham (1868), 8 Wall. 123, 139; United States v. Dewitt (1869), 9 Wall. 41, 45; Henderson v. Mayor of New York (1875), 92 U.S. 259, 274; Beer Co. v. Massachusetts (1877), 97 U.S. 25, 33; Patterson v. Kentucky (1878), 97 U.S. 501, 503; Mobile County v. Kimball (1880), 102 U.S. 691, 701; Brown v. Houston (1885), 114 U.S. 622, 631; Walling v. Michigan (1886), 116 U.S. 446, 461; Mugler v. Kansas (1887), 123 U.S. 623, 657, 658.
In the Passenger Cases, 7 How. 283, decided in 1849, two years after the License Cases, statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving from abroad, were adjudged to be repugnant to the Constitution and laws of the United States, and therefore void, by the opinions of Justices McLean, Wayne, Catron, McKinley and Grier, against the dissent of Chief Justice Taney and Justices Daniel, Nelson and Woodbury, each of the judges delivering a separate opinion. The decision in the License Cases was relied on by each of the dissenting judges; pp. 470, 483, 497, 518, 524, 559; and no doubt of the soundness of that decision was suggested in the opinions of the majority of the court, or in any of the cases in which the judgment of that majority was afterwards approved and followed. Henderson v. Mayor of New York, and Commissioners of Immigration v. North German Lloyd, 92 U.S. 259; Chy Lung v. Freeman, 92 U.S. 275; People v. Compagnie Générale Transatlantique, 107 U.S. 59; Head Money Cases, 112 U.S. 580.
When Mr. Justice Grier, in the Passenger Cases, 7 How. 462, said, "And to what weight is that argument entitled, which assumes, that, because it is the policy of Congress to *148 leave this intercourse free, therefore it has not been regulated, and each State may put as many restrictions upon it as she pleases?" the context shows that he had in mind cases in which the policy to leave commerce free had been manifested by statute or treaty; and he had already, on page 457, made it manifest that he did not intend to retract or to qualify his opinion in the License Cases.
An intention on the part of Congress that commerce shall be free from the operation of laws passed by a State in the exercise of its police power cannot be inferred from the mere fact of there being no national legislation upon the subject, unless in matters as to which the power of Congress is exclusive. Where the power of Congress is exclusive, the States have, of course, no power to legislate; and it may be said that Congress, by not legislating, manifests an intention that there should be no legislation on the subject. But in matters over which the power of Congress is paramount only, and not exclusive, the power of the States is not excluded until Congress has legislated; and no intention that the States should not exercise, or continue to exercise, their power over the subject can be inferred from the want of congressional legislation. Transportation Co. v. Parkersburg, 107 U.S. 691, 702-704.
The true test for determining when the power of Congress to regulate commerce is, and when it is not, exclusive, was formulated and established in Cooley v. Board of Wardens, 12 How. 299, concerning the validity of a state law for the regulation of pilots and pilotage, in which Mr. Justice Curtis, in delivering judgment, said: "When the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now, the power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively *149 demanding that diversity, which alone can meet the local necessities of navigation. Either absolutely to affirm, or deny, that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." He then stated that the act of Congress of August 7, 1789, c. 9, § 4, (1 Stat. 54) in regard to pilotage, manifested the understanding of Congress, at the outset of the government, that the nature of the subject was not such as to require its exclusive legislation, but was such that, until Congress should find it necessary to exercise its power, it should be left to the legislation of the States, because it was local and not national, and was likely to be best provided for, not by one system or plan of regulation, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits; and he added, in words which appear to us equally appropriate to the case now before the court: "The practice of the States, and of the national government, has been in conformity with this declaration, from the origin of the national government to this time; and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience, and conformed to local wants." "We are of opinion that this state law was enacted by virtue of a power residing in the State to legislate; that it is not in conflict with any law of Congress; that it does not interfere with any system which Congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action." 12 How. 319-321.
In Gilman v. Philadelphia, 3 Wall. 713, 730, this court. speaking by Mr. Justice Swayne, applying the same test, and relying on Willson v. Blackbird Creek Marsh Co. and Cooley v. Board of Wardens, above cited, upheld the validity of a statute *150 of Pennsylvania authorizing the construction of a bridge across the Schuylkill River, so as to prevent the passage of vessels with masts; and, after stating the points adjudged in Brown v. Maryland and in the Passenger Cases, said: "But a State, in the exercise of its police power, may forbid spirituous liquor imported from abroad, or from another State, to be sold by retail, or to be sold at all, without a license; and it may visit the violation of the prohibition with such punishment as it may deem proper. License Cases, 5 How. 504."
By the same test, and upon the authority of Willson v. Blackbird Creek Marsh Co., a statute of Wisconsin, authorizing the erection of a dam across a navigable river, was held to be constitutional in Pound v. Turck, 95 U.S. 459, 463. To the like effect are Willamette Bridge v. Hatch, 125 U.S. 1, 8-12, and other cases there cited.
Upon like grounds, it was held, in Mobile County v. Kimball, 102 U.S. 691, that a statute of Alabama, authorizing the improvement of the harbor of Mobile, did not trench upon the commercial power of Congress; and the court, after pointing out that some expressions of Chief Justice Marshall in Gibbons v. Ogden as to the exclusiveness of the power of Congress to regulate commerce were restricted by the facts of that case, and by the subsequent judgment in Willson v. Blackbird Creek Marsh Co., said: "In the License Cases, which were before the court in 1847, there was great diversity of views in the opinions of the different judges upon the operation of the grant of the commercial power of Congress in the absence of Congressional legislation. Extreme doctrines upon both sides of the question were asserted by some of the judges; but the decision reached, so far as it can be viewed as determining any question of construction, was confirmatory of the doctrine that legislation of Congress is essential to prohibit the action of the States upon the subjects there considered." 102 U.S. 700, 701.
In Woodruff v. Parham, 8 Wall. 123, a state statute, imposing a uniform tax on all sales by auction within it, was held constitutional, as applied to sales of goods the product of other States and sold in the original and unbroken packages. *151 In Hinson v. Lott, 8 Wall. 148, decided at the same time, it was adjudged that a state statute which prohibited any dealers, introducing any intoxicating liquors into the State, from offering them for sale, without first paying a tax of fifty cents a gallon, and imposed a like tax on liquors manufactured within the State, was valid, as applied to liquors brought from another State, and held and offered for sale in the same barrels or packages in which they were brought in; because, in the words of Mr. Justice Miller, who delivered the opinion of the court in both cases, it was not "an attempt to regulate commerce, but an appropriate and legitimate exercise of the taxing power of the State." 8 Wall. 153. These two cases were cited by the court in Low v. Austin, 13 Wall. 29, 34, and in Cook v. Pennsylvania, 97 U.S. 566, 573, in which, in accord with the opinions in the License Cases, state taxation upon original cases of wines imported from a foreign country, and upon which duties had been paid under acts of Congress, was held to be invalid.
In Welton v. Missouri, 91 U.S. 275, the point decided was that a state statute, requiring the payment of a license tax from persons selling, by going from place to place within the State for the purpose, goods not the growth or manufacture of the State, and not from persons so selling goods which were the growth or manufacture of the State, was unconstitutional and void, by reason of the discrimination; and in Machine Co. v. Gage, 100 U.S. 676, a state statute imposing a like tax, without discriminating as to the place of growth or produce of material or manufacture, was adjudged to be constitutional and valid, as applied to machines made in and brought from another State.
In Brown v. Houston, 114 U.S. 622, it was decided that coal, mined in Pennsylvania and brought in boats by river from Pittsburg to New Orleans, to be there sold by the boat-load on account of the Pennsylvania owner, and remaining afloat in its original condition and original packages, was subject, in common with all other property in the city, to taxation under the general tax laws of Louisiana; and the court referred to Woodruff v. Parham, above cited, as upholding the validity *152 of a "tax laid on auction sales of all property indiscriminately," and "which had no relation to the movement of goods from one State to another." 114 U.S. 634.
In Walling v. Michigan, 116 U.S. 446, the statute of Michigan, which was held to be an unconstitutional restraint of interstate commerce, imposed a different tax upon persons engaged within the State in the business of selling or soliciting the sale of intoxicating liquors to be sent into the State, from that imposed upon persons selling or soliciting the sale of such liquors manufactured within the State; and the court declared that the statute would be perfectly justified as "an exercise by the legislature of Michigan of the police power of the State for the discouragement of the use of intoxicating liquors, and the preservation of the health and morals of the people," "if it did not discriminate against the citizens and products of other States in a matter of commerce between the States, and thus usurp one of the prerogatives of the national legislature." 116 U.S. 460.
In Wabash, St. Louis & Pacific Railway v. Illinois, 118 U.S. 557, the only point decided was that a State had no power to regulate the rates of freight of any part of continuous transportation upon railroads partly within the State and partly in other States. In Robbins v. Shelby Taxing District, 120 U.S. 489, a state law requiring the payment of a license tax by drummers and persons not having a regularly licensed house of business within the taxing district, offering for sale or selling any goods by sample, was decided to be unconstitutional as applied to persons offering to sell goods on behalf of merchants residing in other States, because, as the majority of the court held, its effect was "to tax the sale of such goods, or the offer to sell them, before they are brought into the State." 120 U.S. 497. Neither of those cases appears to us to tend to limit the police power of the State to protect the public health, the public morals and the public peace within its own borders.
As was said by this court in Sherlock v. Alling, 93 U.S. 99, 103, "In conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life and safety of *153 their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it, without constituting a regulation of it, within the meaning of the Constitution." It was accordingly held in that case that an action against a carrier engaged in interstate commerce might be maintained under a state statute giving a civil remedy, unknown to the common law, for negligence causing death; and in subsequent cases that what a State might punish or afford redress for, it might seek by proper precautions to prevent; and consequently, that a state statute requiring, under a penalty, engineers of all railroad trains within the State to be examined and licensed by a state board, either as to their qualifications generally, or as to their capacity to distinguish between color signals, was not in its nature a regulation of commerce, but was a constitutional exercise of the power reserved to the States, and intended to secure the safety of persons and property within their territorial limits, and, so far as it affected interstate commerce, not in conflict with any express enactment of Congress upon the subject, nor contrary to any intention of Congress to be presumed from its silence. Smith v. Alabama, 124 U.S. 465; Nashville, Chattanooga & St. Louis Railway v. Alabama, 128 U.S. 96.
In Railroad Co. v. Husen, 95 U.S. 465, it was expressly conceded, in the opinion of the court delivered by Mr. Justice Strong, that a State, in the exercise of its police power, could "legislate to prevent the spread of crime, or pauperism, or disturbance of the peace," as well as "justify the exclusion of property, dangerous to the property of citizens of the State; for example, animals having contagious or infectious diseases." 95 U.S. 471. And the decision, by which the statute of Missouri, forbidding the introduction of any Texas, Mexican or Indian cattle into the State, was held to be an unconstitutional interference with interstate commerce, rested, as clearly appears in the opinion in that case, and has since been distinctly recognized by the court, upon the ground that the statute made no distinction, in the transportation forbidden, between cattle which might be diseased and those which were not. Kimmish v. Ball, 129 U.S. 217, 221.
*154 The authority of the States, in the exercise of their police power, and for the protection of life and health, to pass laws affecting things which are lawful subjects or instruments of commerce, and even while they are actually employed in commerce, has been expressly recognized by Congress in the acts regulating the transportation of nitro-glycerine, as well as in the acts for the observation and execution of the quarantine and health laws of the States. Rev. Stat. §§ 4278-4280; 4792-4796.
In Morgan's Steamship Co. v. Louisiana Board of Health, 118 U.S. 455, 465, the system of quarantine laws established by the State of Louisiana was held, in accordance with earlier opinions, to be a constitutional exercise of the police power; and it was said by the court: "Quarantine laws belong to that class of state legislation which, whether passed with intent to regulate commerce or not, must be admitted to have that effect, and which are valid until displaced or contravened by some legislation of Congress. The matter is one in which the rules that should govern it may in many respects be different in different localities, and for that reason be better understood and more wisely established by the local authorities. The practice which should control a quarantine station on the Mississippi River, a hundred miles from the sea, may be widely and wisely different from that which is best for the harbor of New York." It was added that in this respect the case fell within the principle of Willson v. Blackbird Creek Marsh Co., Cooley v. Board of Wardens, Gilman v. Philadelphia, Pound v. Turck, and other cases.
In Mugler v. Kansas, 123 U.S. 623, the court said: "In the License Cases, 5 How. 504, the question was, whether certain statutes of Massachusetts, Rhode Island and New Hampshire, relating to the sale of spirituous liquors, were repugnant to the Constitution of the United States. In determining that question, it became necessary to inquire whether there was any conflict between the exercise by Congress of its power to regulate commerce with foreign countries, or among the several States, and the exercise by a State of what are called police powers. Although the members of the court did *155 not fully agree as to the grounds upon which the decision should be placed, they were unanimous in holding that the statutes then under examination were not inconsistent with the Constitution of the United States, or with any act of Congress." 123 U.S. 657, 658.
In Bowman v. Chicago & Northwestern Railway, 125 U.S. 465, the point, and the only point decided, was that a statute of Iowa, which forbade common carriers to bring intoxicating liquors into the State from any other State, without first obtaining a certificate from a county officer of Iowa, that the consignee was authorized by the laws of Iowa to sell such liquors, was an unconstitutional regulation of interstate commerce. While Mr. Justice Field in his separate opinion (p. 507) intimated, and three dissenting justices (pp. 514, 515) feared, that the decision was in effect inconsistent with the decision in the License Cases, Mr. Justice Matthews, who delivered the judgment of the majority of the court, not only cautiously avoided committing the court to any such conclusion, but took great pains to mark the essential difference between the two decisions. On the one hand, after making a careful analysis of the opinions in the License Cases, he said: "From this analysis it is apparent that the question presented in this case was not decided in the License Cases. The point in judgment in them was strictly confined to the right of the States to prohibit the sale of intoxicating liquor after it had been brought within their territorial limits. The right to bring it within the States was not questioned." On the other hand, in stating the reasons for holding the statute of Iowa, prohibiting the transportation of liquors from another State, not to be a legitimate exertion of the police power of the State of Iowa, he said: "It is not an exercise of the jurisdiction of the State over persons and property within its limits. On the contrary, it is an attempt to exert that jurisdiction over persons and property within the limits of other States. It seeks to prohibit and stop their passage and importation into its own limits, and is designed as a regulation for the conduct of commerce before the merchandise is brought to its border." "But the right to prohibit sales, so far as conceded *156 to the States, arises only after the act of transportation has terminated, because the sales which the State may forbid are of things within its jurisdiction. Its power over them does not begin to operate until they are brought within the territorial limits which circumscribe it." 125 U.S. 479, 498, 499.
In the opinion of the majority of the court in that case, it was noted that the omission of Congress to legislate might not so readily justify an inference of its intention to exclude state legislation in matters affecting interstate commerce, as in those affecting foreign commerce; Mr. Justice Matthews saying: "The organization of our state and federal system of government is such that the people of the several States can have no relations with foreign powers in respect to commerce or any other subject, except through the government of the United States and its laws and treaties. The same necessity perhaps does not exist equally in reference to commerce among the States. The power conferred upon Congress to regulate commerce among the States is indeed contained in the same clause of the Constitution which confers upon it power to regulate commerce with foreign nations. The grant is conceived in the same terms, and the two powers are undoubtedly of the same class and character and equally extensive. The actual exercise of its power over either subject is equally and necessarily exclusive of that of the States, and paramount over all the powers of the States; so that state legislation, however legitimate in its origin or object, when it conflicts with the positive legislation of Congress, or its intention reasonably implied from its silence, in respect to the subject of commerce of both kinds, must fail. And yet, in respect to commerce among the States, it may be, for the reason already assigned, that the same inference is not always to be drawn from the absence of congressional legislation as might be in the case of commerce with foreign nations. The question, therefore, may be still considered in each case as it arises, whether the fact that Congress has failed in the particular instance to provide by law a regulation of commerce among the States is conclusive of its intention that the subject shall be free from all positive regulation, or that, until it positively *157 interferes, such commerce may be left to be freely dealt with by the respective States." 125 U.S. 482, 483.
In Kidd v. Pearson, 128 U.S. 1, a statute of Iowa, prohibiting the manufacture or sale of intoxicating liquors, except for mechanical, medicinal, culinary and sacramental purposes only, and authorizing any building used for their unlawful manufacture to be abated as a nuisance, was unanimously held to be constitutional, as applied to a case in which the liquors were manufactured for exportation and were sold outside the State; and the court, in showing how impracticable it would be for Congress to regulate the manufacture of goods in one State to be sold in another, said: "The demands of such a supervision would require, not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent." "A situation more paralyzing to the state governments, and more provocative of conflicts between the general government and the States, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine." 128 U.S. 21, 22.
The language thus applied to congressional supervision of the manufacture within one State of intoxicating liquors intended to be sold in other States appears to us to apply with hardly less force to the regulation by Congress of the sale within one State of intoxicating liquors brought from another State. How far the protection of the public order, health and morals demands the restriction or prohibition of the sale of intoxicating liquors is a question peculiarly appertaining to the legislatures of the several States, and to be determined by them upon their own views of public policy, taking into consideration the needs, the education, the habits and the usages, of people of various races and origin, and living in regions far apart and widely differing in climate and in physical characteristics. The local option laws prevailing in many of the States indicate the judgment of as many legislatures, that the sale of intoxicating liquors does not admit of regulation by a uniform rule over so large an area as a single State, much less over the area of a continent. It is manifest that the regulation *158 of the sale, as of the manufacture, of such liquors manufactured in one State to be sold in another, is a subject which, far from requiring, hardly admits of a uniform system or plan throughout the United States. It is, in its very nature, not national, but local; and must, in order to be either reasonable or effective, conform to the local policy and legislation concerning the sale, or the manufacture, of intoxicating liquors generally. Congress cannot regulate this subject under the police power, because that power has not been conceded to Congress, but remains in the several States; nor under the commercial power, without either prescribing a general rule unsuited to the nature and requirements of the subject, or else departing from that uniformity of regulation which, as declared by this court in Kidd v. Pearson, above cited, it was the object of the commercial clause of the Constitution to secure.
The above review of the judgments of this court since the decision in the License Cases appears to us to demonstrate that that decision, while often referred to, has never been overruled or its authority impugned.
It only remains to sum up the reasons which have satisfied us that the judgment of the Supreme Court of Iowa in the case at bar should be affirmed.
The protection of the safety, the health, the morals, the good order and the general welfare of the people is the chief end of government. Salus populi suprema lex. The police power is inherent in the States, reserved to them by the Constitution, and necessary to their existence as organized governments. The Constitution of the United States and the laws made in pursuance thereof being the supreme law of the land, all statutes of a State must, of course, give way, so far as they are repugnant to the national Constitution and laws. But an intention is not lightly to be imputed to the framers of the Constitution, or to the Congress of the United States, to subordinate the protection of the safety, health and morals of the people to the promotion of trade and commerce.
The police power extends to the control and regulation of things which, when used in a lawful and proper manner, are *159 subjects of property and of commerce, and yet may be used so as to be injurious or dangerous to the public safety, the public health or the public morals. Common experience has shown, that the general and unrestricted use of intoxicating liquors tends to produce idleness, disorder, disease, pauperism and crime.
The power of regulating or prohibiting the manufacture and sale of intoxicating liquors appropriately belongs, as a branch of the police power, to the legislatures of the several States, and can be judiciously and effectively exercised by them alone, according to their views of public policy and local needs; and cannot practically, if it can constitutionally, be wielded by Congress as part of a national and uniform system.
The statutes in question were enacted by the State of Iowa in the exercise of its undoubted power to protect its inhabitants against the evils, physical, moral and social, attending the free use of intoxicating liquors. They are not aimed at interstate commerce; they have no relation to the movement of goods from one State to another, but operate only on intoxicating liquors within the territorial limits of the State; they include all such liquors without discrimination, and do not even mention where they are made or whence they come. They affect commerce much more remotely and indirectly than laws of a State, (the validity of which is unquestioned,) authorizing the erection of bridges and dams across navigable waters within its limits, which wholly obstruct the course of commerce and navigation; or than quarantine laws, which operate directly upon all ships and merchandise coming into the ports of the State.
If the statutes of a State, restricting or prohibiting the sale of intoxicating liquors within its territory, are to be held inoperative and void as applied to liquors sent or brought from another State and sold by the importer in what are called original packages, the consequence must be that an inhabitant of any State may, under the pretext of interstate commerce, and without license or supervision of any public authority, carry or send into, and sell in, any or all of the other States of the Union intoxicating liquors of whatever description, *160 in cases or kegs, or even in single bottles or flasks, despite any legislation of those States on the subject, and although his own State should be the only one which had not enacted similar laws. It would require positive and explicit legislation on the part of Congress, to convince us that it contemplated or intended such a result.
The decision in the License Cases, 5 How. 504, by which the court, maintaining these views, unanimously adjudged that a general statute of a State, prohibiting the sale of intoxicating liquors without license from municipal authorities, included liquors brought from another State and sold by the importer in the original barrel or package, should be upheld and followed; because it was made upon full argument and great consideration; because it established a wise and just rule, regarding a most delicate point in our complex system of government, a point always difficult of definition and adjustment, the contact between the paramount commercial power granted to Congress and the inherent police power reserved to the States; because it is in accordance with the usage and practice which have prevailed during the century since the adoption of the Constitution; because it has been accepted and acted on for forty years by Congress, by the state legislatures, by the courts and by the people; and because to hold otherwise would add nothing to the dignity and supremacy of the powers of Congress, while it would cripple, not to say destroy, the whole control of every State over the sale of intoxicating liquors within its borders.
The silence and inaction of Congress upon the subject, during the long period since the decision in the License Cases, appear to us to require the inference that Congress intended that the law should remain as thereby declared by this court; rather than to warrant the presumption that Congress intended that commerce among the States should be free from the indirect effect of such an exercise of the police power for the public safety, as had been adjudged by that decision to be within the constitutional authority of the States.
For these reasons, we are compelled to dissent from the opinion and judgment of the majority of the court.
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294 S.W.3d 862 (2009)
Ashley Jean SAWYER, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-08-00229-CR.
Court of Appeals of Texas, Beaumont.
Submitted June 16, 2009.
Decided August 26, 2009.
Bryan Laine, Beaumont, for appellant.
Sue Korioth, Special Prosecutor for Jasper County, Dallas, for state.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
OPINION
HOLLIS HORTON, Justice.
Ashley Jean Sawyer pled guilty to possession of a controlled substance, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (Vernon 2003). The trial court deferred adjudication of guilt, placed Sawyer on community supervision for three years, and assessed a $3000.00 fine. The State subsequently filed a motion *863 to adjudicate guilt. When Sawyer's counsel refused to allow her to enter a plea to the State's motion to adjudicate, the trial court deemed her refusal to be a plea of "not true" to the allegations. After an evidentiary hearing, the trial court found the allegations in the motion to adjudicate to be true, found Sawyer guilty of possessing a controlled substance, and sentenced her to two-years' confinement in a state jail facility. We affirm.
Background
The State's motion to adjudicate alleged Sawyer committed two violations of the terms and conditions established for her community supervision. First, the State alleged Sawyer violated the condition that she commit no offense against Texas law when she operated a vehicle while intoxicated, struck a pedestrian with her vehicle, and caused his death. Second, based on the contention that she had used marijuana, the State alleged Sawyer violated the condition that she abstain from using alcohol, marijuana, and any other illegal controlled substance.
To carry its burden of proof, the State called several witnesses to testify at the hearing on its motion to adjudicate. Included was Sawyer's probation officer who presented testimony about Sawyer's drug use. Also called to testify were persons who witnessed events surrounding the pedestrian's death. After the State rested, the defense presented no witnesses.
On appeal, Sawyer raises one issue. She contends the trial court abused its discretion in sentencing her to state jail confinement because the law in effect at the time of her offense mandated a suspended sentence.
Analysis
Sawyer's argument primarily relies on the 2003 version of article 42.12, section 15(a)(1) of the Texas Code of Criminal Procedure, which provided as follows:
On conviction of a state jail felony under Section 481.115(b), 481.1151(b)(1), 481.116(b), 481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision, unless the defendant has previously been convicted of a felony, in which event the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. The provisions of this subdivision requiring the judge to suspend the imposition of the sentence and place the defendant on community supervision do not apply to a defendant who under Section 481.1151(b)(1), Health and Safety Code, possessed more than five abuse units of the controlled substance or under Section 481.121(b)(3), Health and Safety Code, possessed more than one pound of marihuana.
Act of May 24, 2003, 78th Leg., R.S., ch. 1122, § 1, 2003 Tex. Gen. Laws 3212, amended by Act of May 26, 2007, 80th Leg., R.S., ch. 1025, § 1, 2007 Tex. Gen. Laws 3565, 3565-66 (current version at TEX.CODE CRIM. PROC. ANN. art. 42.12 § 15(a)(1) (Vernon Supp. 2008)).
The Dallas Court of Appeals, however, recently determined that section 5(b) of article 42.12 controls over section 15(a)(1) in deferred adjudication cases such as Sawyer's, and we agree. See Dudley v. State, No. 05-06-01448-CR, 2008 WL 2043034, at *4 (Tex.App.-Dallas May 14, 2008, no pet.); see also TEX.CODE CRIM. PROC. ANN. art. 42.12 §§ 5(b), 15(a)(1) (Vernon Supp. 2008). Section 5(b), in pertinent part provides that a trial court "assessing punishment after an adjudication *864 of guilt of a defendant charged with a state jail felony may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony." The Dudley Court found that section 5 "is a special statute relating to deferred adjudication proceedings and controls the trial court's discretion in assessing punishment...." Id.; see Kesinger v. State, 34 S.W.3d 644, 645 (Tex.App.-San Antonio 2000, pet. ref'd)(holding that section 5(b) is a specific statute that controls over section 15(a)(1)).
Under a previous version of article 42.12, section 15(a), we stated that community supervision was mandatory for defendants who had no previous felony convictions and were convicted of state jail felonies after revocation of deferred adjudication community supervision. See Jackson v. State, 990 S.W.2d 879, 882 (Tex.App.-Beaumont 1999, no pet.). In Jackson, the parties advanced no argument that article 42.12, section 5(b) controlled over article 42.12, section 15(a). See id. Here, the State argues that section 5(b) controls. To the extent there exists any conflict with this case, Jackson is overruled.
In 2007, Sawyer pled guilty to a state jail felony under 481.115(a), (b), namely, possession of a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b). The trial court did not adjudicate her guilt, but instead deferred adjudication and placed Sawyer on community supervision. The trial court revoked Sawyer's community supervision, convicted her on May 9, 2008, and sentenced her to two years confinement in a state jail facility, as authorized under section 5(b). See TEX.CODE CRIM. PROC. ANN. art. 42.12 § 5(b). We find the trial court did not abuse its discretion in doing so.
Accordingly, we overrule Sawyer's issue and affirm the trial court's judgment.
AFFIRMED.
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9 So.3d 868 (2009)
STATE of Louisiana
v.
Roy Anthony JOHNSON.
No. 2008-KO-2649.
Supreme Court of Louisiana.
June 5, 2009.
Denied.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-00357-SCT
TELLUS OPERATING GROUP, LLC
v.
MAXWELL ENERGY, INC.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 01/31/2012
TRIAL JUDGE: HON. DAVID SHOEMAKE
TRIAL COURT ATTORNEYS: MALCOLM ROGERS
CHRISTY M. SPARKS
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CHANCERY
COURT
ATTORNEYS FOR APPELLANT: GLENN GATES TAYLOR
CHRISTY M. SPARKS
ATTORNEYS FOR APPELLEE: HEATHER WHITE MARTIN
MALCOLM T. ROGERS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED. THE JUDGMENT
OF THE CHANCERY COURT OF
JEFFERSON DAVIS COUNTY IS
REVERSED AND RENDERED- 01/22/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHANDLER, JUSTICE, FOR THE COURT:
¶1. In this case, we review a challenge to a Mississippi Oil and Gas Board pooling order
force-integrating various owners’ interests in a proposed drilling unit. See Miss. Code Ann.
§ 53-3-7 (Rev. 2003). We hold that the Board’s order was supported by substantial evidence.
We also find that one owner’s attempt to voluntarily integrate his interest within twenty days
of the Board’s pooling order did not satisfy Section 53-3-7(2)(g)(iii).
FACTS AND PROCEEDINGS BELOW
¶2. In 2006, Tellus Operating Group, LLC, sought to integrate the interests of various
owners for the purpose of drilling a well unit in Jefferson Davis County. In accordance with
its statutory duty to make a good-faith effort to negotiate the voluntary integration of the
owners’ interests on reasonable terms, Tellus mailed option forms to the owners in June and
July of 2006. The three options for voluntary integration were to lease the interest, farm out
the interest, or participate as a working interest owner in the costs and risks of drilling,
developing, and operating the well by agreeing in writing to pay the owner’s share of the
actual costs of drilling, testing, completing, equipping, and operating the well. For the third
option of participation, the letter accompanying the option form indicated that the agreement
in writing must be evidenced by execution of an Authorization for Expenditure (“AFE”) and
Operating Agreement (“JOA”). It further included a summary of some of the terms of the
JOA. Upon election of that option, the AFE and JOA would be prepared and sent to the
owner for execution.1
¶3. D. E. Maxwell, owner and president of interest owner Maxwell Energy, Inc., checked
the third option to participate in the costs of developing the unit. However, he struck through
the language on the option form which stated that owner would participate “in accordance
1
Per Board policy, owners also could request a copy of the proposed JOA for review
prior to electing an option.
2
with the terms and conditions set out in paragraph (3) of the offer in the attached letter,” and
wrote in by hand that he would participate “as to Maxwell Energy, Inc.’s proportionate share
of .00971714 [%] in accordance with applicable law set out in Miss. Code 53-3-7.” He did
not execute the AFE and JOA.
¶4. After allowing for the statutorily required ninety days to pass after submitting the
options to the owners, Tellus petitioned the Mississippi Oil and Gas Board to integrate the
interests of the owners, including a force-integration of Maxwell Energy’s interest as a
nonconsenting owner subject to alternate-risk penalties.2 Twenty-one owners had elected
participation and signed off on the terms of the AFE and JOA. With ninety-six percent of the
owners’ interests voluntarily integrated, Maxwell Energy challenged the pooling petition,
seeking recognition that it had consented to be a participating owner, that it wanted more
time to negotiate a more favorable JOA, and that it was willing immediately to front its share
of the initial anticipated cost of the dry well (calculated by applying its percent interest to the
estimated initial dry-well cost outlined in the AFE).
¶5. The Board held a hearing on October 18, 2006. Only a few days before the hearing,
Maxwell Energy sent Tellus an alternate JOA proposal. D.E. Maxwell appeared at the
hearing on the company’s behalf. Maxwell requested a continuance of the hearing, stating
2
Because nonconsenting owners do not front any of the costs of developing the
drilling unit, they do not risk financial loss if the well is dry or unprofitable. Alternate-risk
penalties have the ultimate effect of diverting a greater share of profits, if any, to the
participating owners who risked a financial loss up front. Statutes like these have been
enacted because “it is unfair for a nonconsenting owner . . . to be relieved of the costs and
risks associated with drilling a producing well, but at the same time reap the benefits of
another’s efforts in extracting oil and gas from beneath his or her land.” Cadeco, LLC v.
Industrial Comm’n of North Dakota, 812 N.W. 2d 405, 407-08 (N.D. 2012).
3
that he wanted the drilling to go forward as scheduled, but that he wanted time to negotiate
the participation terms to meet Tellus “halfway” between the two proposed JOAs. Tellus
objected to the continuance, asserting that it had complied with its statutory good-faith
requirements and deadlines. It further noted that operations on the well were scheduled to
begin prior to the next Board meeting.3 The Board denied the motion to continue.
¶6. Maxwell testified, as did Tellus landman James Clark. Tellus’s attorney asked
Maxwell to go through, point by point, the terms of the JOA he found to be unreasonable.
Maxwell conceded that he had entered or was aware of other JOAs that contained similar
terms, but he also testified to his personal experience and knowledge of JOAs with more
favorable terms, particularly in regard to the high percentage of alternate-risk penalties on
subsequent unit projects. Clark testified that Tellus’s JOA was based on a standard form
developed in 1982 by the American Association of Professional Landmen. The form contains
blanks to be filled in based on the needs of the parties, and parties routinely use strike-outs
and additions to modify the form. Clark testified that the alternate-risk percentages, while
high, are not unusual in the industry, given the increase in recent years of the costs and risks
of drilling exploration. Maxwell argued that terms can be unreasonable as applied to some
owners and not others, and that the intent of the force-integration statute was not to give
3
Tellus’s attorney indicated to the Board that he had, when the force-integration
statute initially came out, attempted to do the same thing for a client–elect participation
merely by submitting a check for a proportionate share of up-front costs–and that the Board
consistently has rejected that type of attempt to elect participation absent an agreement to
more specific reasonable terms.
4
operators undue leverage to convince owners to lease their interest without the power to
negotiate away from expensive penalties.
¶7. In additional support of its argument that the proposed terms were reasonable and
offered in good faith, Tellus pointed to the fact that twenty-one other owners, many of them
sophisticated in the industry, had agreed to the terms of the JOA. It pointed to the difficulties
that could arise if less than one percent of the owners were governed by a significantly
different JOA from the other owners. It also pointed to the late date at which Maxwell
Energy had gotten back to Tellus with a proposed alternate JOA.
¶8. The Board granted the petition to pool the interests, including a force-integration of
Maxwell Energy’s interest as a nonconsenting owner. After stating that the statutory
requirements had been met, the Board’s order stated that “the evidence presented at the
hearing supports these findings.” Within twenty days of the pooling order, Maxwell Energy
sent Tellus a check for $18,277.94 and a letter stating that Maxwell Energy
. . . elects in writing to participate and join in on the same cost basis as the
other consenting owners for its share of the cost and risk of developing and
operating of the above unit as described and referenced hereinabove, insofar
and only insofar as the same relates to Maxwell’s leasehold interest covering
mineral interests which are subject to alternate risk charges, and hereby agrees
in writing to pay its pro rata share of all the costs associated therewith.
Tellus rejected Maxwell Energy’s check, and Maxwell Energy did not consent to any of the
options offered prior to the Board’s hearing and order.
¶9. Maxwell Energy appealed the Board’s force-integration order to the Jefferson Davis
County Chancery Court. In 2012, the chancery court reversed the Board’s order, finding that
it was not supported by substantial evidence. The court also found that Maxwell Energy’s
5
submission of the check for its share of estimated initial drilling costs, along with the letter
stating that it would participate on the same costs basis, satisfied the requirements of Section
53-3-7(2)(g)(iii) for voluntary integration after a pooling order is entered.
¶10. Tellus appealed to the Mississippi Court of Appeals, which initially ruled
unanimously in Maxwell Energy’s favor, affirming the ruling of the chancery court. Then,
after granting Tellus’s motion for rehearing and receiving numerous amici briefs, the Court
of Appeals reversed its decision and issued a unanimous opinion in favor of Tellus, reversing
the chancery court judgment and reinstating the Board’s pooling order. We granted certiorari
review of the Court of Appeals’ second opinion.4
DISCUSSION
¶11. “The standard for judicial review of orders of the State Oil and Gas Board is whether
the order is supported by substantial evidence, is arbitrary or capricious, beyond the power
of the Board to make, or violates some constitutional right of the complaining party.”
Superior Oil Co. v. State Oil & Gas Bd., 220 So. 2d 602, 603-04 (Miss.1969). The Board
evaluates the weight and credibility of the evidence, and when the Board evaluates
conflicting testimony, the reviewing court “may not substitute its opinion for the opinion of
the Board.” Boyles v. Mississippi State Oil & Gas Bd., 794 So. 2d 149, 156 (Miss. 2001).
Questions of statutory interpretation are reviewed de novo. Adams v. Mississippi State Oil
& Gas Bd., 139 So. 3d 58, 67 (Miss. 2014).
4
Tellus did not file a motion for rehearing before the Court of Appeals on the second
judgment. In granting certiorari review, this Court waived that procedural requirement in
view of the circumstance such a motion would be a subsequent motion for rehearing after
the case had been reversed on an initial motion for rehearing.
6
I. The Mississippi Oil and Gas Board’s order was supported by
substantial evidence.
¶12. The process by which operators offer owners the opportunity to voluntarily integrate
their drilling interests is governed by Mississippi Code Section 53-3-7(2)(a), which provides
in relevant part:
In the event that one or more owners owning not less than thirty-three percent
(33%) of the drilling rights in a drilling unit voluntarily consent to the drilling
of a unit well thereon, and the operator has made a good faith effort to (i)
negotiate with each nonconsenting owner to have said owner’s interest
voluntarily integrated into the unit . . . and (v) offer each nonconsenting owner
the opportunity to lease or farm out on reasonable terms or to participate in the
cost and risk of developing and operating the unit well involved on reasonable
terms, by agreeing in writing, then the operator may petition the board to allow
it to charge alternate charges . . .
Miss. Code Ann. § 53-3-7(2)(a) (Rev. 2003).
¶13. A plain reading of the statute clearly provides that the agreement in writing is an
agreement to the reasonable terms that have been negotiated in good faith. While a JOA
specifically is not statutorily required, it is an appropriate and common vehicle in which the
agreed-on terms are memorialized. Maxwell and Tellus had not entered into a statutorily
sufficient agreement in writing prior to the hearing on Tellus’s integration petition to the
Board.
¶14. The Board heard, point by point, the terms in the JOA Maxwell objected to as
unreasonable as to Maxwell Energy, as well as Tellus’s rebuttal evidence. The Board
members asked extensive questions regarding the terms, common industry practices, and the
witness’s experiences in the industry. Moreover, Maxwell did not present counteroffer terms
until almost the eve of the scheduled Board hearing. Applying our deferential standard of
7
review, we find that the Board’s decision that Tellus met all of its statutory requirements for
offering good-faith options for voluntary integration on reasonable terms was supported by
substantial evidence.5
II. Statutory Interpretation of Mississippi Code Section 53-3-
7(2)(g)(iii)
¶15. Mississippi Code Section 53-3-7(2)(g)(iii) provides a last opportunity for
nonconsenting owners to participate following a Board pooling order:
. . . The pooling order if issued shall provide that each nonconsenting owner
shall be afforded the opportunity to participate in the development and
operation of the well in the pooled unit as to all or any part of said owner’s
interest on the same costs basis as the consenting owners by agreeing in
writing to pay that part of the costs of such development and operation
chargeable to said nonconsenting owner’s interest, or to enter into such other
written agreement with the operator as the parties may contract, provided such
acceptance in writing is filed with the board within twenty (20) days after the
pooling order is filed for record with the board . . . .
Miss. Code Ann. § 53-3-7(2)(g)(iii) (Rev. 2003). Maxwell Energy argues that it satisfied this
statute by sending a unilateral letter to Tellus stating that it would participate on the same
costs basis as the consenting owners and by sending Tellus a check for Maxwell Energy’s
estimated share of initial drilling costs. Tellus, consistent with the Board’s longstanding
position, argues that, when the two subsections of Section53-3-7 are read together, Section
53-3-7(2)(g) simply provides a opportunity to elect in writing one of the three offers in
5
We certainly do not find, and Tellus does not suggest, that the terms necessarily must
be uniform among the owners in order to be reasonable. We do not intend to discourage
owners from engaging in negotiations or operators from being flexible within reason to
obtain the goal of voluntary integration.
8
Section 53-3-7(2)(a), on the terms the Board found reasonable, or to negotiate an alternate
contract on such terms as the parties can agree on.
¶16. We will engage in statutory construction when a statutory provision is ambiguous due
to two reasonable interpretations. Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div.
of Medicaid, 21 So. 3d 600, 607 (Miss. 2009). Under the doctrine of in pari materia, where
two statutes speak to the same or similar subject matter, “this Court must resolve the
ambiguity by applying the statute consistently with other statutes dealing with the same or
similar subject matter.” State ex rel. Hood v. Madison Cnty. ex rel. Madison Cnty. Bd. Of
Supervisors, 873 So. 2d 85, 91 (Miss. 2004).
¶17. We agree with Tellus and the longtime working position of the Board that, when
Sections 53-3-7(2)(a) and 53-3-7(2)(g)(iii) are read together, Section 53-3-7(2)(g)(iii)
requires a nonconsenting owner, after a pooling order, to enter into a written agreement to
what the Board found to be reasonable terms, or enter into such other written agreement as
the parties may contract. If we construed Maxwell Energy’s actions to satisfy this statute,
then owners who participate under Section 53-3-7(g)(iii) would in effect be exempt from the
requirements of Section 53-3-7(2) for an an agreement in writing to reasonable terms
negotiated in good faith. Section 53-3-7(g)(iii) does not create a loophole whereby an owner
can simply wait until after a pooling order is issued as a way of avoiding being bound to
terms the Board found to be reasonable or avoiding further negotiations to reach mutual
alternative terms with the operator. The absence of contractually agreed-on terms also is
highly impracticable, given the highly complicated and expensive nature of drilling projects
9
that might last decades. We find that the statute is intended to provide certainty of the
reasonable terms to which the parties are bound as the unit(s) are developed.
CONCLUSION
¶18. We hold that the chancellor erred in finding that the Board’s order was not supported
by substantial evidence and also in finding that Maxwell’s actions after the pooling order
operated to integrate his interest voluntarily. The judgment of the Court of Appeals is
affirmed. The chancellor’s order is reversed, and the Board’s pooling order is reinstated.
¶19. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE CHANCERY COURT OF JEFFERSON DAVIS COUNTY IS
REVERSED AND RENDERED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING
AND COLEMAN, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
10
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0014V
Filed: July 10, 2019
PUBLISHED
ANTHONY CAPASSO,
Special Processing Unit (SPU);
Petitioner, Decision Awarding Damages; Pain
v. and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
SECRETARY OF HEALTH Vaccine Administration (SIRVA)
AND HUMAN SERVICES,
Respondent.
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On January 4, 2017, Anthony Capasso (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa–10, et seq.2 (the “Vaccine Act” or “Program”), alleging that as a result of
receiving an influenza (“flu”) vaccination on November 14, 2015, he suffered a shoulder
injury related to vaccine administration (“SIRVA”) to his left shoulder. Petition at 1. The
case was assigned to the Special Processing Unit (“SPU”) of the Office of Special
1
The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the Internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this published decision contains a reasoned explanation for the
action in this case, the undersigned is required to post it on the United States Court of Federal Claims’
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
1
Masters. For the reasons discussed below, the undersigned now finds that petitioner is
entitled to compensation in the amount of $75,190.00.
I. Relevant Procedural History3
Mr. Capasso filed his petition for compensation on January 4, 2017, with four
medical record exhibits, alleging that the injuries he received to his left shoulder were
caused by a flu vaccine he received on November 14, 2015. Petition at 1. (ECF No. 1).
Additional medical records and a Statement of Completion were filed in March 2017.
(ECF Nos. 8-11).
On June 12, 2017, respondent filed a status report stating that the records had
been reviewed and that respondent found the case appropriate for settlement.
Respondent invited petitioner to send a settlement demand. (ECF No. 15). Over the
next three months, the parties attempted to resolve this case through informal
settlement discussions. On September 8, 2017, petitioner filed a status report stating
that the parties were at an impasse and requested a status conference. (ECF No. 20).
To evaluate the issues in the case, the undersigned ordered respondent to file his report
pursuant to Vaccine Rule 4(c). (ECF No. 21).
On November 14, 2017, respondent filed his Rule 4(c) report stating that this
case was not appropriate for compensation under the terms of the Vaccine Act for
several reasons, including an inadequate onset period for a SIRVA injury, that petitioner
had not satisfied the severity requirement of six months, and that there may have been
an alternate cause for petitioner’s shoulder injury. (ECF No. 23). Respondent also
argued that because petitioner had not provided evidence that satisfied his burden of
proof under Althen,4 nor had petitioner provided an expert report or medical theory to
support his claim, petitioner’s claim for compensation should be denied. After a status
conference was held in the case, the parties agreed to submit briefs on entitlement and
request a ruling. (ECF No. 28).
On August 8, 2018, the undersigned issued findings of fact and a ruling on
entitlement in petitioner’s favor, resolving the issues of onset, the six-month severity
requirement, and determining that petitioner was entitled to compensation. (ECF No.
33)
On October 9, 2018, petitioner filed a status report stating that the parties
“agreed as to the amount that Petitioner is entitled to for reimbursement of out of pocket
medical expenses, but disagree on the amount for pain and suffering and lost wages”
and proposed a schedule for filing damages briefs. (ECF No. 37). On April 17, 2018, a
scheduling order was issued setting the proposed schedule for the parties to file briefs
on damages. (ECF No. 38). The parties have filed their respective briefs and this case
is now ripe for a determination regarding an award of damages.
3
The undersigned adopts the comprehensive procedural history set forth in the Findings of Fact and
Ruling on Entitlement issued on August 3, 2018. See Capasso v. Sec’y of Health & Human Servs., No.
17-0014V, 2018 WL 5077781, at *1-2 (Fed. Cl. Spec. Mstr. Aug. 3, 2018).
4
Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)
2
II. Relevant Factual History
a. Medical Records
In November 2015, Mr. Capasso (age 41) was working at Toray Plastics where
he had been employed for more than 17 years. Petitioner’s Exhibit (“Pet. Ex.”) 3 at 4;
Pet. Ex. 8 at 1-2, ¶5. Mr. Capasso’s medical history does not mention any history of
shoulder injuries and does not otherwise appear to be contributory to his claim in this
case.
On November 14, 2015, Mr. Capasso received a flu vaccination in his left arm at
a Rite Aid Pharmacy located in Portsmouth, Rhode Island. Pet. Ex. 1 at 1; Pet. Ex. 2 at
16. In his affidavit, Mr. Capasso stated that he felt some pain in his left shoulder the
day after he was vaccinated which increased over the next couple of days. Pet. Ex. 10
at 1. He stated that approximately two to three days after vaccination, he woke up and
noticed that the pain in his left shoulder from the prior night had become much more
severe. Id. Mr. Capasso was unable to lift his left arm to put on his shirt and had to ask
his wife for assistance. He was unable to sleep that night due to the pain. Id.
On December 3, 2015, 19 days later, Mr. Capasso presented to his primary care
physician, Dr. Liza Famador, for complaints of left-sided shoulder pain after receiving a
flu vaccination two to three weeks prior. Pet. Ex. 2 at 17. Mr. Capasso reported that he
received the flu vaccine at Rite Aid on November 14, 2015, and later that night, had
“swelling on the area until the next day.” Id. He also noted pain while moving his left
arm, putting on his seatbelt, and with flexion. Id. Upon examination, Mr. Capasso
exhibited tenderness of the left shoulder. Id. At this time, Dr. Famador noted that
petitioner had normal strength and normal range of motion of his left shoulder. Id. A
diagnosis of contusion of the left deltoid region was made, and Mr. Capasso was
advised to apply ice compressions to the affected area for 20 minutes, three times daily.
Id. at 18. Dr. Famador also advised that Mr. Capasso perform range of motion (“ROM”)
exercises and take ibuprofen for pain. Id.
Mr. Capasso presented for his annual exam on January 15, 2016. Pet. Ex. 2 at
19. At this visit, he complained that his left shoulder continued to bother him. Id. Dr.
Famador again noted that Mr. Capasso’s pain started after he received a flu shot in
November. Id. The musculoskeletal portion of the physical exam documented
tenderness of the left shoulder although Mr. Capasso still had normal range motion and
normal strength of his left shoulder. Id. at 20. Dr. Famador also noted that there was
no cervical adenopathy. Id. at 21. The assessment stated that while Mr. Capasso’s left
shoulder pain had improved, some discomfort was still present. Id. He was advised to
continue using warm compresses and to perform a series of shoulder exercises and
massages to treat his symptoms. Id. Dr. Famador also advised that petitioner may
want to consider physical therapy if his shoulder pain did not improve. Id.
On February 22, 2016, Mr. Capasso underwent an initial evaluation at University
Orthopedics with physical therapist, Diane Jones. Pet. Ex. 4 at 2. Mr. Capasso
reported that his shoulder became sore after receiving a flu shot in November 2015, and
he reported experiencing severe pain at the time of examination (a range from 6 - 9 out
of 10). Id. Mr. Capasso was noted to have certain impairments with the range of
3
motion of his left shoulder. Specifically, he was noted to have moderate impairment
with the passive range of motion (“PROM”) of his glenohumeral joint with external
rotation. Id. He also had mild impairment with his active range of motion (“AROM”) with
shoulder flexion, shoulder scaption, and shoulder external rotation. Mr. Capasso was
noted to have moderate levels of impairment of the AROM with shoulder abduction,
shoulder horizontal adduction and shoulder internal rotation. Id. at 3. He had moderate
weakness and decreased strength at a 3/5 level. Id. The evaluation notes indicate that
Mr. Capasso was able to engage in moderate work duty but only at a 50% level. He
had mild difficulty reaching overhead and lifting and pulling light objects. Id. at 3. Mr.
Capasso also reported moderate difficulty sleeping at night due to the pain. Id. The
assessment was shoulder and upper arm mobility deficits associated with a sprain and
strain. Id. at 4. The plan of care was for physical therapy for one visit per week for six
weeks. Id.
Mr. Capasso attended his first physical therapy session on March 1, 2016. Pet.
Ex. 4 at 6. During this session, a positive finding on a special test used to evaluate
shoulder injuries, the Hawkins-Kennedy test, was noted. Id. The abnormal range of
motion of his left shoulder and pain levels were all noted to be the same as the initial
consultation. Id. at 6- 8.
Mr. Capasso continued to attend physical therapy sessions on March 7 and
March 24. At the March 7, 2016 session, his range of motion and pain levels continued
to be substantially the same as the initial evaluation, although there was a slight
improvement noted in his PROM. Pet. Ex. 4 at 9-11. By the March 24, 2017 session, it
is noted that Mr. Capasso
[H]as made good progress since [start of care] with return of full functional
painfree AROM. P[atient]’s strength has returned to 5 out of 5 without
pain. Continued slight scapular winging but has improved since beginning
exercises with PT. P[atien]t has returned to normal daily activities without
pain and has met all goals initially set. P[atien]t is indep[endent] with HEP
[home exercise program] and will continue on maintenance program.
Pet. Ex. 4 at 15. However, the undersigned notes that there were still some mild
impairments documented with Mr. Capasso’s AROM with shoulder flexion and shoulder
abduction during this session. Id. at 14. Mr. Capasso was discharged and instructed to
return to his referring physician if his symptoms returned. Id. at 15. In his affidavit, Mr.
Capasso stated that his physical therapy sessions went well and he was able to
continue working pain free. However, the relief was short lived and he began to
experience similar left shoulder pain a month later. Pet. Ex. 10 at 2.
Mr. Capasso returned to Dr. Famador on June 3, 2016, with complaints of
continued left shoulder pain. Pet. Ex. 2 at 23. Although Mr. Capasso underwent
physical therapy in March 2016, he reported that his symptoms returned over the past
1-2 months. Mr. Capasso reported that he had shooting pain in his left shoulder with
certain activities such as rowing or when he was spreading concrete. He reported that
he was still performing his shoulder exercises at home. Id. His physical examination
was positive for arthralgia and tenderness of the left shoulder, but Dr. Famador
documented normal range of motion and normal strength during the examination. Id. at
4
24. In the assessment, Dr. Famador recommended that Mr. Capasso return to his
orthopedist for a repeat evaluation. Id. at 16. Dr. Famador stated that an MRI or steroid
injection may be necessary. Id. Mr. Capasso was encouraged to continue performing
his home exercise program and to resume using ice or heat over the shoulder area. Id.
On July 6, 2016, Mr. Capasso underwent an MRI of his left shoulder. Pet. Ex. 3
at 2. The MRI was abnormal and showed a partial-thickness tearing and/or
tendinopathy of the infraspinatus tendon. There was no evidence of a full-thickness
rotator cuff tear. Id.
On August 11, 2016, Mr. Capasso was seen in follow-up by his primary care
physician, Dr. Maher, for left shoulder pain and to review the results of the MRI. Pet.
Ex. 3 at 5. Mr. Capasso’s range of motion and strength levels were not documented in
these notes. Id. The plan was for petitioner to continue with physical therapy, ibuprofen
and to continue to be seen in follow up. Id. No additional medical records have been
filed following this August 11, 2016 visit.
b. Affidavit testimony
In his affidavit, Mr. Capasso stated that prior to his November 14, 2015 flu
vaccination, he was very active, exercised regularly and ate well. Pet. Ex. 10 at 2. He
said that he never had any sort of shoulder problems in the past, even after previous
vaccinations. Id. Mr. Capasso explained how his shoulder injury affected his job. He
stated during the time he was experiencing his shoulder symptoms, he avoided working
non-mandatory overtime because the pain was so severe. Id. at 1-2. However, he did
work the mandatory overtime so that he would not lose income or his job. He described
how he asked his co-workers for assistance with strenuous tasks that required the use
of his left arm and shoulder. Id. at 2. Mr. Capasso explained that while his pain
affected his ability to perform his job, he continued to work and did not take any time off
due to his injury because he took pride in his perfect attendance record. Pet. Ex. 8 at 1-
2. He stated that he has not called out of work sick in the last seven years. Id. at 2. At
the time of his vaccination, Mr. Capasso was only two months away from receiving an
award for the fifth year in a row and he decided to work his way through the pain. Pet.
Ex. 9 at 1. Mr. Capasso explained that he considers himself a model employee and has
always excelled in his performance reviews. Id.
His coworker, Mike Chianese, also confirmed that Mr. Capasso had asked for
help with the “heavy lifting” due to his shoulder injury. Pet. Ex. 9 at 1. Mr. Chianese
stated that Mr. Capasso “struggled with just normal duties” and that seeing him struggle
at work was difficult, so he helped as much as he could. Id.
Mr. Capasso’s wife stated that initially, both she and her husband were going to
receive flu shots on November 14, 2015, but she declined receiving a vaccine that day
because she was unfamiliar with the pharmacist administering the vaccines. Pet. Ex.
11. After observing her husband receive his flu vaccine, Ms. Capasso stated that she
“had a bad feeling.” Id. She described how she observed her husband’s shoulder
become swollen and sore to the touch at the injection site. Id. She also explained that
his pain became so severe that she had to help her husband dress into his clothes in
the morning. Id. By February 2016, Ms. Capasso stated that her husband’s condition
5
had deteriorated. Id. She now had to do all the chores around the home that required
any lifting, including shoveling snow. Id. at 1-2. Ms. Capasso stated that her husband
was very diligent about his physical therapy and while his pain and strength improved
after therapy, within a month of leaving therapy, his pain returned. Id. at 2. Ms.
Capasso described that when their daughter moved back home from college from her
freshman year in the summer of 2016, her husband was unable to help with moving her
furniture because of the risk of further injuring his shoulder. Id. He was unable to go
out on their row boat that summer and he was unable to golf, one of his favorite
activities. Id. Ms. Capasso stated that even today, two and half years later, her
husband still performs exercises that are part of his home exercise program for his
shoulder. Id.
III. Party Contentions
Petitioner seeks an award in the amount of $90,190.00, consisting of $90,000.00
as compensation for his pain and suffering, and $190.00 for past unreimbursable
medical expenses. Petitioner’s Brief in Support of Damages (“Pet. Brief”) at 1 (ECF No.
41). Petitioner has confirmed that he is not seeking compensation for lost wages or
future medical expenses. In his brief and affidavit, petitioner stresses the degree to
which his injury impacted his life beyond what is, or would be, reflected in his medical
records. Id. at 1 (ECF No. 41); Pet. Ex. 10 at 1.
Respondent argues that petitioner should be awarded $45,000.00 as
compensation for his actual pain and suffering, in addition to the $190.00 in
unreimbursable expenses to which the parties have agreed. Respondent’s Brief on
Damages (“Res. Brief”) at 1 (ECF No. 44). He maintains that “[p]etitioner sustained a
relatively minor injury and received relatively little treatment.” Id. at 6. He argues that
while petitioner reported his pain to his primary care physician within three weeks of his
vaccination, his subsequent physical examinations did not demonstrate that he was
experiencing significant deficits as a result of his SIRVA. Id. Respondent also argues
that although petitioner’s pain returned and he was ultimately diagnosed with “partial-
thickness tearing and/or tendinopathy of the infraspinatus,” he fully recovered by August
2016, and thus, fully recovered within a year. Id.
Comparing petitioner’s facts to those in Desrosier, Dirksen, Knauss, and Marino,5
respondent asserts “all four of these cases are factually distinguishable.” Id. Instead,
respondent notes that the amount offered by respondent is supported with proffers
agreed to by petitioner’s counsel in other cases with more severe clinical courses. See,
e.g., Zebofsky v. Sec’y of Health & Human Servs., No. 15-1084V, 2017 WL 8682428, at
*1 (Fed. Cl. Spec. Mstr. Dec. 1, 2017), ($55,000.00 awarded to a petitioner who had two
5
Desrosiers v. Sec’y of Health & Human Servs., No. 16-224V, 2017 WL 5507804 (Fed. Cl. Spec. Mstr.
Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and $336.20 in past unreimbursable medical
expenses); Dirksen v. Sec’y of Health & Human Servs., No. 16-1461V, 2018 WL 6293201 (Fed. Cl. Spec.
Mstr. Oct. 18, 2018) (awarding $85,000.00 for pain and suffering and $6,784.56 in past unreimbursable
medical expenses); Knauss v. Sec’y of Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed.
Cl. Spec. Mstr. May 23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in
unreimbursable medical expenses); Marino v. Sec’y of Health & Human Servs., No. 16-622V, 2018 WL
2224736 (Fed. Cl. Spec. Mstr. Mar. 26, 2018) (awarding $75,000.00 for pain and suffering and $88.88 in
unreimbursable medical expenses).
6
steroids injections, one round of PT spanning two months, and documented shoulder
pain lasting approximately seven months per the submitted medical records).6 Res.
Brief at 8-9.
IV. Discussion and Analysis
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
an award not to exceed $250,000.” § 15(a)(4). Additionally, a petitioner may recover
“actual unreimbursable expenses incurred before the date of judgment award such
expenses which (i) resulted from the vaccine-related injury for which petitioner seeks
compensation, (ii) were incurred by or on behalf of the person who suffered such injury,
and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . determined
to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears the burden of proof with
respect to each element of compensation requested. Brewer v. Sec’y Health & Human
Servs., No. 93-92V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996).
Medical records are the most reliable evidence regarding a petitioner’s medical
condition and the effect it has on his daily life. Shapiro v. Sec’y Health & Human Servs.,
101 Fed. Cl. 532, 537-38 (2011) (“[t]here is little doubt that the decisional law in the
vaccine area favors medical records created contemporaneously with the events they
describe over subsequent recollections.”)
There is no formula for assigning a monetary value to a person’s pain and
suffering and emotional distress. I.D. v. Sec’y of Health & Human Servs., No. 04-
1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for
emotional distress are inherently subjective and cannot be determined by using a
mathematical formula”); Stansfield v. Sec’y of Health & Human Servs., No. 93-172V,
1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) (“the assessment of pain
and suffering is inherently a subjective evaluation”). Factors to be considered when
determining an award for pain and suffering include: 1) awareness of the injury; 2)
severity of the injury; and 3) duration of the suffering. I.D., 2013 WL 2448125, at *9
(quoting McAllister v. Sec’y of Health & Human Servs., No 91-1037V, 1993 WL 777030,
at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70
F.3d 1240 (Fed. Cir. 1995)). In evaluating these factors, the undersigned has reviewed
the entire record, including medical records, affidavits submitted by petitioner and
others, and the parties’ briefs.
The undersigned may also look to prior pain and suffering awards to aid in her
resolution of the appropriate amount of compensation for pain and suffering this case.
See, e.g., Doe 34 v. Sec’y of Health & Human Servs., 87 Fed. Cl. 758, 768 (2009)
(finding that “there is nothing improper in the chief special master’s decision to refer to
damages for pain and suffering awarded in other cases as an aid in determining the
proper amount of damages in this case.”). And, of course, the undersigned also may
6
The facts described above are not found in the decision awarding compensation (which is based on a
proffer) but are set forth in the ruling on entitlement. See Zebofsky v. Sec’y of Health & Human Servs.,
No. 15-1084V, 2017 WL 7051381, at *4-5 (Fed. Cl. Spec. Mstr. Sept. 28, 2017).
7
rely on her own experience adjudicating similar claims.7 Hodges v. Sec’y of Health &
Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the
special masters would use their accumulated expertise in the field of vaccine injuries to
judge the merits of individual claims). Importantly, it must be stressed that pain and
suffering is not determined based on a continuum. See Graves v. Sec’y of Health &
Human Servs., 109 Fed. Cl. 579 (2013).
In Graves, the Court rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. The Court noted that this constituted “the forcing of all suffering
awards into a global comparative scale in which the individual petitioner’s suffering is
compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl.
at 590. Instead, the Court assessed pain and suffering by looking to the record
evidence, prior pain and suffering awards within the Vaccine Program, and a survey of
similar injury claims outside of the Vaccine Program. Id. at 595.
A. History of SIRVA Settlement and Proffer
SIRVA cases have an extensive history of informal resolution within the SPU. As
of January 1, 2019, 1,023 SIRVA cases have informally resolved8 within the Special
Processing Unit since its inception in July of 2014.9 Of those cases, 602 resolved via
the government’s proffer on award of compensation, following a prior ruling that
petitioner is entitled to compensation.10 Additionally, 395 SPU SIRVA cases resolved
via stipulated agreement of the parties without a prior ruling on entitlement.
Among the SPU SIRVA cases resolved via government proffer, awards have
typically ranged from $77,000.00 to $125,000.00.11 The median award is $100,000.00.
In most instances, these awards are presented by the parties as a total agreed upon
dollar figure without separately listed amounts for expenses, lost wages, or pain and
suffering.
7
From July 2014 until September 2015, the SPU was overseen by former Chief Special Master Vowell.
Since that time, all SPU cases, including the majority of SIRVA claims, have remained on the
undersigned’s docket.
8
Additionally, 31 claims alleging SIRVA have been dismissed within the SPU.
9
In Kim, infra, and Young, infra, the undersigned previously described SPU SIRVA case resolutions
through July 1, 2018.
10
Additionally, there have been 16 prior cases in which petitioner was found to be entitled to
compensation, but where damages were resolved via a stipulated agreement by the parties rather than
government proffer.
11
Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $25,000.00 to $1,845,047.00. Among the 16 SPU SIRVA cases
resolved via stipulation following a finding of entitlement, awards range from $45,000.00 to $1,500,000.00
with a median award of $122,886.42. For these awards, the second and third quartiles range from
$90,000.00 to $160,502.39.
8
Among SPU SIRVA cases resolved via stipulation, awards have typically ranged
from $50,000.00 to $95,000.00.12 The median award is $70,000.00. As with proffered
cases, in most instances, stipulated awards are presented by the parties as a total
agreed upon dollar figure without separately listed amounts for expenses, lost wages, or
pain and suffering. Unlike the proffered awards, which purportedly represent full
compensation for all of petitioner’s damages, stipulated awards also typically represent
some degree of litigative risk negotiated by the parties.
B. Prior Decisions Addressing SIRVA Damages
In addition to the extensive history of informal resolution, the undersigned has
also issued 14 reasoned decisions as of the end of March of 2019 addressing the
appropriate amount of compensation in prior SIRVA cases within the SPU.13
i. Below-median awards limited to past pain and suffering
In six prior SPU cases, the undersigned has awarded compensation for pain and
suffering limited to compensation for actual or past pain and suffering that has fallen
below the amount of the median proffer discussed above. These awards ranged from
$60,000.00 to $85,000.00.14 These cases have all included injuries with a “good”
prognosis, albeit in some instances with some residual pain. All of these cases had
only mild to moderate limitations in range of motion and MRI imaging likewise showed
only evidence of mild to moderate pathologies such as tendinosis, bursitis or edema.
12
Typical range refers to cases within the second and third quartiles. Additional outlier awards also exist.
The full range of awards spans from $5,000.00 to $509,552.31. Additionally, two stipulated awards were
limited to annuities, the exact amounts of which were not determined at the time of judgment.
13
An additional case, Young v. Sec’y Health & Human Servs., No. 15-1241V, was removed from the SPU
due to the protracted nature of the damages phase of that case. In that case the undersigned awarded
$100,000.00 in compensation for past pain and suffering and $2,293.15 for past unreimbursable
expenses. 2019 WL 664495 (Fed. Cl. Spec. Mstr. Jan. 22, 2019). A separate reasoned ruling addressed
the amount awarded. Young v. Sec’y Health & Human Servs., No. 15-1241V, 2019 WL 396981 (Fed. Cl.
Spec. Mstr. Jan. 4, 2019).
14 These cases are: Knauss v. Sec’y Health & Human Servs., No. 16-1372V, 2018 WL 3432906 (Fed. Cl.
Spec. Mstr. May 23, 2018) (awarding $60,000.00 for pain and suffering and $170.00 in unreimbursable
medical expenses); Marino v. Sec’y Health & Human Servs., No. 16-622V, 2018 WL 2224736 (Fed. Cl.
Spec. Mstr. Mar. 26, 2018) (awarding $75,000.00 for pain and suffering and $88.88 in unreimbursable
medical expenses); Attig v. Sec’y Health & Human Servs., No. 17-1029V, 2019 WL 1749405 (Fed. Cl.
Spec. Mstr. Feb. 19, 2019)(awarding $75,000.00 for pain and suffering and $1,386.97 in unreimbursable
medical expenses); Kim v. Sec’y Health & Human Servs., No. 17-418V, 2018 WL 3991022 (Fed. Cl.
Spec. Mstr. July 20, 2018) (awarding $75,000.00 for pain and suffering and $520.00 in unreimbursable
medical expenses); Desrosiers v. Sec’y Health & Human Servs., No. 16-224V, 2017 WL 5507804 (Fed.
Cl. Spec. Mstr. Sept. 19, 2017) (awarding $85,000.00 for pain and suffering and $336.20 in past
unreimbursable medical expenses); Dirksen v. Sec’y Health & Human Servs., No. 16-1461V, 2018 WL
6293201 (Fed. Cl. Spec. Mstr. Oct. 18, 2018) (awarding $85,000.00 for pain and suffering and $1,784.56
in unreimbursable medical expenses).
9
The duration of injury ranged from seven to 21 months and, on average, these
petitioners saw between 11 and 12 months of pain.
Significant pain was reported in these cases for up to eight months. However, in
most cases, these petitioners subjectively rated their pain as six or below on a ten-point
scale. Only the petitioners in Kim and Attig reported pain at the upper end of the ten-
point scale. Most of these petitioners pursued physical therapy for two months or less
and none had any surgery. Only two (Attig and Marino) had cortisone injections.
Several of these cases (Knauss, Marino, Kim and Dirksen) delayed in seeking
treatment. These delays ranged from about 42 days in Kim to over six months in
Marino.
Two of the petitioners (Marino and Desrosiers) had significant lifestyle factors
that contributed to their awards. In Marino, petitioner presented evidence that her
SIRVA interfered with her avid tennis hobby. In Desrosiers, petitioner presented
evidence that her pregnancy and childbirth prevented her from immediately seeking full
treatment of her injury.
ii. Above-median awards limited to past pain and suffering
Additionally, in five prior SPU cases, the undersigned has awarded
compensation limited to past pain and suffering falling above the median proffered
SIRVA award. These awards have ranged from $110,000.00 to $160,000.00.15 Like
those in the preceding group, prognosis was “good.” However, as compared to those
petitioners receiving a below-median award, these cases were characterized either by a
longer duration of injury or by the need for surgical repair. Four out of five underwent
some form of shoulder surgery while the fifth (Cooper) experienced two full years of
pain and suffering, eight months of which were considered significant, while seeking
extended conservative treatment. On the whole, MRI imaging in these cases also
showed more significant findings. In four out of five cases, MRI imaging showed
possible evidence of partial tearing.16 No MRI study was performed in the Cooper case.
15
These cases are: Cooper v. Sec’y Health & Human Servs., No. 16-1387V, 2018 WL 6288181 (Fed. Cl.
Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $3,642.33 in unreimbursable
medical expenses); Knudson v. Sec’y Health & Human Servs., No. 17-1004V, 2018 WL 6293381 (Fed. Cl.
Spec. Mstr. Nov. 7, 2018) (awarding $110,000.00 for pain and suffering and $305.07 in unreimbursable
medical expenses); Collado v. Sec’y Health & Human Servs., No. 17-225V, 2018 WL 3433352 (Fed. Cl.
Spec. Mstr. June 6, 2018) (awarding $120,000.00 for pain and suffering and $772.53 in unreimbursable
medical expenses); Dobbins v. Sec’y Health & Human Servs., No. 16-854V, 2018 WL 4611267 (Fed. Cl.
Spec. Mstr. Aug. 15, 2018) (awarding $125,000.00 for pain and suffering and $3,143.80 in unreimbursable
medical expenses); Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl.
Spec. Mstr. Feb. 1, 2019) (awarding $160,000.00 for pain and suffering and $4,931.06 in unreimbursable
medical expenses).
16
In Reed, MRI showed edema in the infraspinatus tendon of the right shoulder with a possible tendon
tear and a small bone bruise of the posterior humeral head. In Dobbins, MRI showed a full-thickness
partial tear of the supraspinatus tendon extending to the bursal surface, bursal surface fraying and partial
thickness tear of the tendon, tear of the posterior aspects of the inferior glen humeral ligament, and
moderate sized joint effusion with synovitis and possible small loose bodies. In Collado, MRI showed a
partial bursal surface tear of the infraspinatus and of the supraspinatus. In Knudson, MRI showed mild
10
During treatment, each of these petitioners subjectively rated their pain within the
upper half of a ten-point pain scale and all experienced moderate to severe limitations in
range of motion. Moreover, these petitioners tended to seek treatment of their injuries
more immediately. Time to first treatment ranged from five days to 43 days. Duration of
physical therapy ranged from one to 24 months and three out of the five had cortisone
injections.
iii. Awards including compensation for both past and future
pain and suffering
In three prior SPU SIRVA cases, the undersigned has awarded compensation for
both past and future pain and suffering.17 In two of those cases (Hooper and Binette),
petitioners experienced moderate to severe limitations in range of motion and moderate
to severe pain. The Hooper petitioner underwent surgery while in Binette petitioner was
deemed not a candidate for surgery following an arthrogram. Despite significant
physical therapy (and surgery in Hooper), medical opinion indicated that their disability
would be permanent. In these two cases, petitioners were awarded above-median
awards for actual pain and suffering as well as awards for projected pain and suffering
for the duration of their life expectancies. In the third case (Dhanoa), petitioner’s injury
was less severe than in Hooper or Binette; however, petitioner had been actively
treating just prior to the case becoming ripe for decision and her medical records
reflected that she was still symptomatic despite a good prognosis. The undersigned
awarded an amount below-median for actual pain and suffering, but, in light of the facts
and circumstances of the case, also awarded one-year of projected pain and suffering.
V. Appropriate Compensation in this SIRVA Case
In the experience of the undersigned, awareness of suffering is not typically a
disputed issue in cases involving SIRVA. In this case, neither party has raised, nor is
the undersigned aware of, any issue concerning petitioner’s awareness of suffering and
the undersigned finds that this matter is not in dispute. Thus, based on the
circumstances of this case, the undersigned determines that petitioner had full
longitudinally oriented partial-thickness tear of the infraspinatus tendon, mild supraspinatus and
infraspinatus tendinopathy, small subcortical cysts and mild subcortical bone marrow edema over the
posterior-superior-lateral aspect of the humeral head adjacent to the infraspinatus tendon insertion site,
and minimal subacromial-subdeltoid bursitis.
17
These cases are: Dhanoa v. Sec’y Health & Human Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl.
Spec. Mstr. Feb. 1, 2018) (awarding $85,000.00 for actual pain and suffering, $10,000.00 for projected
pain and suffering for one year, and $862.15 in past unreimbursable medical expenses); Binette v. Sec’y
Health & Human Servs., No. 16-731V, 2019 WL 1552620 (Fed. Cl. Spec. Mstr. Mar. 20, 2019) (awarding
$130,000.00 for actual pain and suffering, $1,000.00 per year for a life expectancy of 57 years for
projected pain and suffering, and $7,101.98 for past unreimbursable medical expenses); and Hooper v.
Sec’y Health & Human Servs., No. 17-12V, 2019 WL 1561519 (Fed. Cl. Spec. Mstr. Mar. 20, 2019)
(awarding $185,000.00 for actual pain and suffering, $1,500.00 per year for a life expectancy of 30 years
for projected pain and suffering, $37,921.48 for lost wages).
11
awareness of his suffering and proceeds to analyze the severity and duration of the
injury.
a. Severity of Pain and Suffering
i. Affidavit Testimony
With respect to the severity of petitioner’s injury, Mr. Capasso’s affidavit provides
a description of the pain throughout the duration of his injury. Pet. Ex. 10. In his
affidavit, Mr. Capasso stated that prior to his November 14, 2015 flu vaccination, he was
very active, exercised regularly and ate well. Id. at 2. He never had any sort of
shoulder problems in the past, even after previous vaccinations. Id.
In the initial days following the November 14, 2015 vaccination, Mr. Capasso
described the sharp pain he felt in his left shoulder, especially when he tried to lift his
arm, such as when he was dressing. Pet. Ex. 10 at 1. He described the pain as so
severe that he needed his wife to help him get dressed for work and he hoped for a light
day of physical work. Id. In the weeks following the injury, Mr. Capasso stated that he
would avoid overtime if possible by “giving it away” because the pain in his shoulder
was too severe. Id. When he did work overtime, he stated that he asked his co-
workers for assistance with certain strenuous tasks that required the use of his
shoulder. Id. at 2.
His coworker, Mike Chianese, also filed an affidavit confirming that Mr. Capasso
had asked him to help with the “heavy lifting” due to his shoulder injury. Pet. Ex. 9 at 1.
Mr. Chianese stated that Mr. Capasso “struggled with just normal duties” and that
seeing him struggle at work was difficult, so he helped as much as he could. Id. Mr.
Capasso explained that while his pain affected his ability to perform his job, he
continued to work and did not take any time off due to his injury because he took pride
in his perfect attendance record. Pet. Ex. 8 at 1-2. He stated that he has not called out
of work sick in seven years. Id. at 2. At the time of his vaccination, he was only two
months away from receiving an award for the fifth year in a row and he decided to work
his way through the pain. Pet. Ex. 9 at 1. Mr. Capasso explained that he considers
himself a model employee and has always excelled in his performance reviews. Id.
Mr. Capasso also filed an affidavit from his wife, Andrea Capasso. Pet. Ex. 11.
She described how she observed her husband’s shoulder become swollen and sore to
the touch at the injection site. Id. at 1. She also explained that his pain became so
severe that she had to help her husband dress into his clothes in the morning. Id. By
February 2016, Ms. Capasso stated that her husband’s condition had deteriorated. She
now had to do all the chores around the home that required any lifting, including
shoveling snow. Id. at 1-2. Ms. Capasso stated that her husband was very diligent
about his physical therapy and while his pain and strength improved after therapy,
within a month of leaving therapy, his pain returned. Id. at 2. Ms. Capasso described
that when their daughter moved back home from college from her freshman year in the
summer of 2016, her husband was unable to help with moving the furniture because of
the risk of further injuring his shoulder. Id. He was unable to go out on their row boat
that summer and he was unable to golf, one of his favorite activities. Id. Ms. Capasso
12
states that even today, two and half years later, her husband still performs shoulder
exercises that are part of his home exercise program for his shoulder. Id.
ii. Medical Record Evidence
The undersigned acknowledges and finds that Mr. Capasso suffered severe
shoulder pain from the time he received the flu vaccination at issue on November 14,
2015, to January 15, 2016, where it was documented that Mr. Capasso’s left shoulder
pain had improved and only continued to bother him “a little” – an approximately two-
month period. He first sought treatment approximately 19 days after vaccination. Pet.
Ex. 2 at 17. At that time, he demonstrated normal strength and normal range of motion
of his left shoulder, although he did exhibit tenderness of the left shoulder (although no
pain level rating was provided). Id. He was diagnosed with a contusion of the left
deltoid region and advised to apply ice, perform range of motion exercise and take
ibuprofen for pain.
Mr. Capasso sought treatment for his shoulder two months later, on January 15,
2016, when during his annual physical exam when he reported that his shoulder
continued to cause some discomfort and bothered him “a little”, but the pain had
improved. Pet. Ex. 2 at 19. At this appointment, he continued to exhibit tenderness to
his left shoulder although he still had normal range of motion and normal strength of his
left shoulder. Id. at 20.
Over the next month, Mr. Capasso’s symptoms substantially worsened and he
reported severe pain (a range of 6-9 out of 10). Pet. Ex. 4 at 2. At his initial physical
therapy evaluation appointment on February 22, 2016, he began exhibiting impairments
with the range of motion of his left shoulder. Id. The evaluation notes indicated that Mr.
Capasso was able to engage in moderate work duty but only at a 50% level. Id. at 3.
The plan of care was for physical therapy for one visit per week for six weeks. Id.
Mr. Capasso attended three physical therapy appointments on March 1, 7 and
March 24, 2016. By the March 24, 2017 session, it is noted that Mr. Capasso
[Had] made good progress since [start of care] with return of full functional
painfree AROM. P[atient’]s strength has returned to 5 out of 5 without pain.
Continued slight scapular winging but has improved since beginning
exercises with PT. P[atien]t has returned to normal daily activities without
pain and has met all goals initial set. P[atien]t is indep[endent] with HEP
[home exercise program] and will continue on maintenance program.
Pet. Ex. 4 at 15. However, the undersigned notes that there were still some mild
impairments documented with Mr. Capasso’s active range of motion with shoulder
flexion and shoulder abduction during this session. Id. at 14. Mr. Capasso was
discharged and instructed to return to his referring physician if his symptoms returned.
Id. at 15. In his affidavit, Mr. Capasso stated that his physical therapy sessions went
well and he could continue working pain free. However, the relief was short lived and
he began to experience similar pain a month later. Pet. Ex. 10 at 2.
13
Mr. Capasso returned to Dr. Famador on June 3, 2016, with complaints of
continued left shoulder pain. Pet. Ex. 2 at 23. Although he underwent physical therapy
in March 2016, his symptoms returned over the past 1-2 months. Mr. Capasso reported
that he had shooting pain from his left shoulder with certain activities such as rowing or
when he was spreading concrete. A July 6, 2016 MRI of his left shoulder showed a
partial-thickness tearing and/or tendinopathy of the infraspinatus. Pet. Ex. 3 at 2. By
his August 11, 2016 appointment with his primary care physician, the plan was for Mr.
Capasso to continue with physical therapy, ibuprofen and to be seen in follow up. Pet.
Ex. 3 at 5.
b. Duration of Pain and Suffering
In this case, petitioner’s injury is less severe and of a shorter duration than those
injuries which have warranted higher awards for pain and suffering. Indeed, petitioner’s
medical history closely aligns with those SIRVA cases described above which have
received below-median awards.
In total, petitioner experienced approximately eight months of documented pain
and suffering. Mr. Capasso’s severe level of shoulder pain improved after two months;
however, this improvement was short-lived. His pain returned to a severe level and
maintained this severe level for the next approximately four months. Mr. Capasso’s
MRI on July 6, 2016, demonstrated a partial-thickness tearing and/or tendinopathy of
the infraspinatus. In his affidavit, Mr. Capasso stated that by August 2016, his “shoulder
felt fully recovered, where it was tested through many mandatory overtime hours and
getting through these pain free.” Pet. Ex. 10. at 2. He stated that he returned to
planning some home projects and resumed playing golf. Id.
The above-described course of petitioner’s condition is very similar to the prior
Kim, Marino, and Attig cases, all of which were awarded damages below the median
award for proffered SIRVA cases. In those cases, petitioners experienced from seven
to 15 total months of pain and suffering. However, unlike this case, the Kim and Attig
petitioners reported only one to three months of significant pain and all four cases
included MRI findings consistent with a milder type injury. Mr. Capasso experienced
four to six months of severe pain and his MRI demonstrated a more severe type of
injury. Although Mr. Capasso only attended four physical therapy appointments, he and
his wife averred that he was diligent with his home exercise program. His diligence with
his home exercise program may have contributed to improvement of his symptoms
similar to what he would have accomplished in formal physical therapy. Looking at the
record as a whole, these distinctions provide preponderant evidence that Mr. Capasso
experienced a more severe injury than the above-mentioned petitioners.
In light of all of the above, and based on the record as a whole, the undersigned
finds that $75,000.00 in compensation for past pain and suffering is reasonable and
appropriate in this case.
14
B. Award for Past Unreimbursed Expenses
Mr. Capasso requests $190.00 in past unreimbursable expenses. Pet. Brief at 1;
Pet. Ex. 6. In his brief, respondent agrees to this amount. Res. Brief at 4-5, 10. Thus,
petitioner is awarded $190.00 for his past unreimbursable expenses.
C. Amount of the Award
In determining an award in this case, the undersigned does not rely on a single
decision or case. Rather, the undersigned has reviewed the particular facts and
circumstances in this case, giving due consideration to the circumstances and damages
in other cases cited by the parties and other relevant cases, as well as her knowledge
and experience adjudicating similar cases. For all the reasons discussed above, the
undersigned finds that $75,000.00 represents a fair and appropriate amount of
compensation for petitioner’s actual pain and suffering. In addition, the undersigned
finds that petitioner is entitled to compensation for $190.00 for his past unreimbursed
medical expenses.
VI. Conclusion
In light of all of the above, the undersigned awards petitioner a lump sum
payment of $75,190.00, (representing $75,000.00 for petitioner’s actual pain and
suffering and $190.00 for unreimbursable medical expenses) in the form of a check
payable to petitioner, Anthony Capasso. This amount represents compensation for
all damages that would be available under 42 U.S.C. § 300aa-15(a). Id.
The clerk of the court is directed to enter judgment in accordance with this
decision.18
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
18
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
15
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FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30044
Plaintiff - Appellee, D.C. No. 2:09-cr-02043-EFS
v.
MEMORANDUM *
VICENTE DIAZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted November 7, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**
Vicente Diaz-Garcia appeals his conviction and sentence for illegal reentry into
the United States in violation of 8 U.S.C. § 1326. We reject his arguments and affirm.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge, United States
District Court for the Western District of Michigan, sitting by designation.
We review Sixth Amendment speedy trial claims de novo and underlying
factual findings for clear error. United States v. Mendoza, 530 F.3d 758, 762 (9th Cir.
2008). We review a district court’s decision whether to reduce a defendant’s sentence
for acceptance of responsibility for clear error. United States v. Johnson, 581 F.3d
994, 1001 (9th Cir. 2009). Absent a defendant’s objection before the district court,
we review a defendant’s sentence for plain error. United States v. Charles, 581 F.3d
927, 932 (9th Cir. 2009).
First, the district court did not commit clear error in finding that delaying the
federal prosecution until after the state trial was justified because simultaneous state
and federal trials presented a risk of conflicting hearing dates and transportation.
Similarly, the district court’s finding that there was no evidence of bad faith by the
government for the four-month post-sentencing delay was not clear error. Moreover,
the district court did not clearly err in finding that Diaz-Garcia did not raise his right
to a speedy trial or express a desire to proceed on the indictment until after his
arraignment, despite much earlier knowledge of his indictment. Therefore, applying
the relevant factors, Barker v. Wingo, 407 U.S. 514, 530 (1972) (finding the four
relevant factors to a Sixth Amendment speedy trial claim are length of the delay,
reason for the delay, the defendant’s assertion of the right, and prejudice to the
defendant), we affirm on this issue.
2
Diaz-Garcia next concedes that this panel is bound by Ninth Circuit precedent,
Johnson, 581 F.3d at 1003–04, to reject his argument that the government was
required to move for a three-point reduction in his sentencing offense level for
acceptance of responsibility.
Finally, we agree that the district judge, during sentencing, made an inaccurate
reference to an outdated cognitive disorder. However, reviewing the sentence for
plain error, we affirm the district court. The court reviewed and weighed evidence of
multiple mitigating factors, only one of which was Diaz-Garcia’s proffered cognitive
disorder, and sentenced Diaz-Garcia to the bottom of the guideline range.
AFFIRMED.
3
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FILED
MAY 26, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MICHAEL CHIOFAR GUMMO BEAR, )
by and through his DPOA, RICHARD )
LENNSTROM, )
) No. 32127-4-III
Appellant, )
)
v. )
)
WASHINGTON STATE: its superior )
court, COA-I Hon. Comm. ELLIS, )
COA-II Hon. Comm. SCHMIDT, )
DSHS, DOC, DOL, et al.; PIERCE )
COUNTY: All its agents and Employees, )
et al; KING COUNTY: All its agents and )
Employees, et al; CITY OF SEATILE: )
All its agents and Employees, et al; )
WILLIAM MICHELMAN, JD; )
VALERIE MARUSHIGE, JD; LARRY ) UNPUBLISHED OPINION
GARRETT, JD; and All Their agents & )
Employees, )
)
Defendants, )
)
MICHAEL UNDERWOOD, JD, )
)
Respondent. )
SIDDOWAY, C.J. Michael Chiofar Gummo Bear appeals the trial court's
dismissal of his legal malpractice action against Michael Underwood, whom he alleged
No. 32127-4-III
Gummo Bear v. Underwood
negligently represented him in a 2008 prosecution for felony harassment. The trial court
granted summary judgment dismissing Mr. Bear's complaint notwithstanding Mr. Bear's
request that consideration of the motion be continued until a limited guardian could be
appointed to handle litigation on his behalf.
The trial court never addressed Mr. Bear's legal capacity on the record. Mr.
Bear's assignments of error implicitly contend that the court should have appointed a
guardian ad litem (GAL) sua sponte. We do not find the manifest evidence of need for a
GAL that would demonstrate an abuse of discretion by the trial court, however, nor did
Mr. Bear make the showing required to justity a continuance.
Because the undisputed evidence demonstrated that Mr. Bear had never personally
served Mr. Underwood with process and that the statute of limitations had run, we affirm
the trial court's dismissal of Mr. Bear's claim.
FACTS AND PROCEDURAL BACKGROUND
In May 2008, Mr. Bear was charged with felony criminal harassment after he
made a threatening phone call to a judicial assistant in the Pierce County Superior Court.
The court appointed Michael Underwood to represent him.
The State later amended the information, reducing the charge to misdemeanor
harassment, because it recognized it would be difficult to prove the victim was in
2
No. 32 127-4-III
Gummo Bear v. Underwood
reasonable fear that the threat would be carried out. The judicial assistant told
prosecutors she was not afraid Mr. Bear would act on his threat.
In August 2008, after Mr. Bear was found competent to stand trial, he entered an
Alfordl plea to an amended charge of gross misdemeanor harassment. The State and Mr.
Bear recommended a 365-day sentence with 277 days suspended and credit for the 88
days served; Mr. Bear told the court he was entering the guilty plea because he wanted to
get out ofjail that day. State v. Chiofar, noted at 152 Wn. App. 1017,2009 WL
2942666. 2 The record on which the court relied in accepting the plea did not include
evidence that the threatened judicial assistant reasonably feared that Mr. Bear would
carry out his threat; to the contrary, it included the deputy prosecutor's admission that the
State would have difficulty proving the fear element of felony harassment.
Shortly after pleading guilty, Mr. Bear appealed, seeking to withdraw his guilty
plea. In an unpublished decision, Division Two of this court overturned Mr. Bear's
guilty plea, finding that it lacked a factual basis. Id. As the court observed, "[a]n
element of criminal harassment, whether felony or misdemeanor, is that 'the person
INorth Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970).
2 We cite the unpublished decision not as an authority, but for the history of the
criminal prosecution as relevant to the malpractice action. Cf OR l4.1(a) (prohibiting
citation to unpublished opinions of the Court of Appeals as authority). We note that Mr.
Bear has referred to himself in earlier litigation by different names, including, "Michael
Theodore Bear," "Michael Chiofar," and "Michael Oummo." We use the surname
"Bear" based on the summons and complaint filed below.
3
No. 32127-4-111
Gummo Bear v. Underwood
threatened [be] in reasonable fear that the threat will be carried out.'" Id. at *2 (quoting
RCW 9A.46.020(l)(b) (emphasis added)). The court concluded that Mr. Bear's "stated
belief that conviction was likely ifhe went to trial shows a misunderstanding of the law,"
and his plea was therefore not voluntary. Id. at *3 (footnote omitted). It vacated the
conviction and remanded to the trial court with instructions to allow Mr. Bear to
withdraw his guilty plea and to dismiss the charge. The charge was dismissed on
November 19,2009.
The present action was commenced in Pierce County Superior Court several
months later by the filing of a summons and complaint. Named as plaintiffwas
"CHIOFAR GUMMO BEAR, Michael, by and through his DPOA: LENNSTROM,
Richard." Clerk's Papers (CP) at 1. The first sentence of the complaint stated
Michael CHIOFAR, Plaintiff herein, together with his Durable Power of
Attorney ("DPOA") Richard LENNSTROM, is authorized to act upon the
Plaintiffs involuntary incapacity.
CP at 4.
The complaint named ten defendants: Michael Underwood, three other lawyers,
two judicial officers, and four state or local agencies. It alleged that each of the lawyers
named as defendants "has committed malpractice in my case(s)." CP at 5. After naming
the defendants and alleging jurisdiction and venue, the complaint included this first
allegation of fact:
4
No. 32127-4-III
Gummo Bear v. Underwood
Michael CHIOF AR and his "DPOA", Richard LENNSTROM, are
and have been recipients ofDSHS payments for Social Security, Disability
benefits, and Supplemental Security income. They have been determined
to be eligible for medical benefits for the medically needy. Michael
CHIOFAR has a mental handicap which qualifies under State and Federal
law as a handicap. He has been determined to be incapacitated to handle
certain legal affairs. Richard LENNSTROM has a mental and physical
handicap which qualitY as handicaps under State and F ederallaw. They
have and continue to ask for accommodations to their disabilities.
CP at 6. Elsewhere, the complaint alleged, "Plaintiffs diagnosis of 'Paranoid
Schizophrenia' needs to be accommodated as ... acts and omissions [by attorneys and
officials] and lack of explanation exacerbate Plaintiffs mental disability." CP at 7.
The case was timely removed to the United States District Court for the Western
District of Washington. In respons~ to a motion by Mr. Bear for appointment of a
guardian ad litem on his behalf (a motion joined in by one of the lawyer-defendants), the
federal court appointed John O'Melveny as a guardian ad litem "for the limited purpose
of reviewing the pleadings in this action and making a determination as to whether [Mr.]
Bear's pending claims have merit and whether it is in [Mr.] Bear's best interest to
proceed with the lawsuit." CP at 269.
Mr. O'Melveny submitted a report to the federal court in February 2011, in which
he concluded that while none of Mr. Bear's claims against any other defendant had merit,
Mr. Bear may have a tort claim against Mr. Underwood for not informing Mr. Bear
before he entered his guilty plea that the evidence did not support each element of
criminal harassment. Mr. O'Melveny acknowledged the limits of his information on Mr.
5
No. 32127-4-III
Gummo Bear v. Underwood
Underwood's representation and stated that whether Mr. Bear in fact had a claim "would
be a factual question." CP at 292.
After receiving Mr. O'Melveny's report, the federal court dismissed with
prejudice all of Mr. Bear's claims other than the malpractice claim against Mr.
Underwood. It declined to retain jurisdiction of the state law malpractice claim and
remanded it to the Pierce County Superior Court.
Over two years later, in July 2013, Mr. Underwood filed an answer and
affirmative defenses and shortly thereafter moved for summary judgment. He based his
summary judgment motion on evidence that Mr. Bear had not yet served process on Mr.
Underwood as required by RCW 4.28.080 and CR 4, and argument that Mr. Bear's legal
malpractice claim had become time-barred, pointing out that the statute of limitations for
a legal malpractice action in Washington is three years, as provided by RCW 4.16.080(3).
A cause of action accrues and the limitation period begins to run when the client
"discovers, or in the exercise of reasonable diligence should have discovered the facts
which give rise to his or her cause of action." Peters v. Simmons, 87 Wn.2d 400, 406,
552 P.2d 1053 (1976). Mr. Underwood argued that Mr. Bear's malpractice claim accrued
at the latest on November 19, 2009, when the criminal harassment charge was dismissed.
On that basis, the three-year limitations period expired on November 19, 2012.
Mr. Underwood eventually noted his motion for a September 27, 2013 hearing
date. On September 16,2013, Mr. Bear filed a "Response to Summary Judgment:
6
No. 32127-4-II1
Gummo Bear v. Underwood
Motion for Continuance." CP at 342. He did not respond to the substantive merits of Mr.
Underwood's motion but instead requested a continuance "until at least December 4,
2013." Id. The submission was signed by Mr. Bear and a new "durable power of
attorney," John Scannell.
The response and motion for continuance cited RCW 4.08.060, which
contemplates that a party to a superior court action who is incapacitated shall appear by
guardian or have a guardian ad litem appointed. Alleging that he had been declared
mentally incompetent by at least four different courts, Mr. Bear argued:
Michael Chiofar Gummo Bear has no guardian at the present time. His
former durable power of attorney Richard Lennstrom attempted to petition
the Pierce County Superior Court for appointment of guardian but passed
away before one was appointed. John Scannell attempted to have the
action finished but the court decided that proper venue was King County.
The case was then transferred to King County for appointment of a
guardianship. It is expected that a guardian ad litem will be appointed
today for investigation of a guardianship which would be accomplished on
November 4,2013.
CP at 343.
The record of the hearing on September 27 is sparse. No transcript has been filed.
Courtroom minutes state:
Start Daterrime: 09/27/139:11 AM
September 27,2013 09:10 AM Atty Michael Ryan present on behalf of
deft Underwood[.] John Scannlon present as person with power of attorney
for petitioner. Court hears from Atty Ryan. 09: 14 AM Court inquires of
7
No. 32127-4-111
Gumma Bear v. Underwood
Mr. Scannlon (who is disbarred from Washington State 3). 09:15 AM
Court grants motion for summary judgment ....
End Daterrime: 09/27/13 9:15 AM
CP at 408.
The court signed the order granting summary judgment that was presented by Mr.
Underwood's counsel. In reciting the materials reviewed by the court, the order included
"Response of plaintiff, if any," but it did not reflect any disposition of Mr. Bear's motion
for a continuance. It did not address Mr. Bear's legal capacity. Mr. Bear appeals.
ANALYSIS
Mr. Bear does not contend that he ever properly served Mr. Underwood with
process. He does not dispute that if he was competent for a three year period running
between the time the harassment charges against him were dismissed on November 19,
2009, and the dismissal of his malpractice case against Mr. Underwood on September 27,
2013, then the statute of limitations for a legal malpractice would have run and summary
judgment dismissal would have been proper.
He suggests, however, that if he proved he was "incompetent or disabled to such a
degree that he ... [could not] understand the nature" of his malpractice action so as to
toll the running of the statute of limitations under RCW 4.16.190 or as a matter of equity,
3Reply materials filed by Mr. Underwood had included a Washington State Bar
Association Notice of the disbarment of John R. Scannell effective September 9,2010.
8
No. 32127-4-111
Gummo Bear v. Underwood
then summary judgment would be improper. He raises two related assignments of error:
first, that the trial court erred in refusing to appoint a GAL or grant a continuance until a
guardian could be appointed and second, that it erred by dismissing the complaint where
no guardian or GAL had been appointed. We address his assignments of error in turn.
1. Failure to appoint a GAL or grant the requested continuance
A. Failure to appoint a GAL sua sponte
Mr. Bear did not move the trial court to appoint a GAL, so his implicit position is
that the trial court should have appointed a GAL sua sponte.
RCW 4.08.060(1) provides:
When an incapacitated person is a party to an action in the superior courts
he or she shall appear by guardian, or if he or she has no guardian, or in the
opinion of the court the guardian is an improper person, the court shall
appoint one to act as guardian ad litem. Said guardian shall be appointed as
follows:
(1) When the incapacitated person is plaintiff, upon the application
of a relative or friend of the incapacitated person.
(Emphasis added). Although the statute addresses appointment of a GAL following
application for such an appointment, "[a]n application by one of the parties to a lawsuit is
not a prerequisite. A trial court on its own motion may appoint a guardian ad litem."
Graham v. Graham, 40 Wn.2d 64,67,240 P.2d 564 (1941) (emphasis omitted).
Moreover,
the court should appoint a guardian ad litem for a litigant when it is
'reasonably convinced that a party litigant is not competent,
understandingly and intelligently, to comprehend the significance of legal
9
No. 32127-4-III
Gummo Bear v. Underwood
proceedings and the effect and relationship of such proceedings in terms of
the best interests of such party litigant.'
Vo v. Pham, 81 Wn. App. 781, 790, 916 P.2d 462 (1996) (quoting Graham, 40 Wn.2d at
66-67) (emphasis added).
We review a trial court's determination of the need for a GAL for an abuse of
discretion. Id. at 784. Where a trial court is not presented with any application or request
for appointment of a GAL, we must review the record and determine whether any
reasonable judge would have recognized a need to appoint one.
Mr. Underwood's submissions included evidence that Mr. Bear's unique mental
health issue related to litigation is not that he cannot comprehend legal proceedings but
that he is irrationally addicted to bringing lawsuits. In a somewhat sympathetic
medical/psychological report by Janice B. Edward, PhD, filed in Pierce County Superior
Court Case No. 08-1-02447-6, Dr. Edward stated that Mr. Bear reported having
graduated from high school as his class valedictorian, having graduated from college, and
having completed a year of law school; she described him as "quite intelligent." CP at
160. But she described him as "pathologically litigious," with many adverse
consequences for himself:
[H]e has incurred legal sanctions, spent money that he cannot afford, has
caused himself additional stress, feels himselfto be out of control and to be,
at times, suicidal. It also prevents him from getting the help that he needs
because professionals are concerned about being sued by him .... In reality
he is not resolving any of his emotional issues with these lawsuits, which is
10
No. 32127-4-111
Gummo Bear v. Underwood
what he hopes to do with them, but is actually adding to the burden of his
mental illness.
CP at 164. She recommended that Mr. Bear only be allowed to sue through a guardian,
who should be a person with no personal relationship with Mr. Bear, and that he be
allowed to submit requests to initiate lawsuits only once every 90 days.
Mr. Underwood's evidence included orders from other courts that consistently
treated Mr. Bear not as incapable of comprehending the legal process as a lawsuit
proceeded, but as making repeatedly irrational decisions in bringing lawsuits in the first
place. Mr. Underwood's evidence included a 2008 order of the King County Superior
Court finding Mr. Bear to be a vexatious litigant and imposing, as its only limitation, a
restraint against Mr. Bear filing lawsuits in King County unless a court-appointed
guardian had first reviewed the matter, determined that it had probable merit, and affixed
his or her signature in accordance with CR 11. His evidence included a 2010 order of the
Thurston County Superior Court adopting King County's position that Mr. Bear was a
vexatious litigant and imposing the same limitation.
Finally, Mr. Underwood's evidence included evidence that federal district court
judge Benjamin Settle, to whom the lawsuit below was assigned during the period it was
removed to federal court, found it appropriate to appoint a guardian ad litem only for the
limited purpose of deciding whether the claims had sufficient merit to proceed and not for
any other purpose. He included evidence that when another of Mr. Bear's actions was
11
No. 32127-4-111
Gummo Bear v. Underwood
assigned to Judge Settle in 2013, he dismissed the lawsuit on the pleadings without
appointing any guardian ad litem at all.
Mr. Bear's own pro se submissions demonstrate that he is an intelligent person and
that he is more capable than many pro se parties in some of his legal reasoning, even if
his lack of education and experience together with his mental health issues make him a
poor judge of which claims are worthy of pursuit.
"Mental competency is presumed." Vo, 81 Wn. App. at 784 (citing Binder v.
Binder, 50 Wn.2d 142, 148,309 P.2d 1050 (1957)). Because the trial court was
presented with no motion and no manifest indication that Mr. Bear was in need of
appointment of a guardian ad litem, it did not abuse its discretion in failing to appoint one
sua sponte.
B. Failure to grant the requested continuance
Alternatively, Mr. Bear argues that the court should have granted his motion for a
continuance and awaited the appointment of a limited guardian by the King County court.
By the time Mr. Underwood filed his motion for summary judgment, Mr. Bear had
participated in the lawsuit below without a guardian of his person through the removal of
the lawsuit to federal court, an amendment of the complaint, Mr. Bear's motion for
appointment of a guardian ad litem in federal court, Mr. Bear's motion for
reconsideration of the federal court's dismissal of most of his claims, and an appeal to the
Ninth Circuit Court of Appeals.
12
No. 32127-4-111
Gummo Bear v. Underwood
He did not file his response to the motion for summary judgment and request for
continuance until eleven days before the date set for the hearing of Mr. Underwood's
motion. While he represented in the request for continuance that he had been declared
mentally incompetent by at least four different courts, he did not provide copies of those
orders and provided no explanation why he now needed a guardian of his person to
proceed with a three-and-one-half-year-old lawsuit.
CR 56(t) governs continuances when a party faced with a motion for summary
judgment cannot timely present by affidavit facts essential to justify his opposition to the
motion. The rule "provides that 'the court ... may order a continuance to permit
affidavits to be obtained or depositions to be taken.' (Emphasis added.) Where the
decision of the trial court is a matter of discretion, it will not be disturbed on review
except on a clear showing of abuse of discretion." Farmer v. Davis, 161 Wn. App. 420,
430,250 PJd 138 (2011).
Discretion is abused when it is based on untenable grounds or is manifestly
unreasonable. In re Det. ofSchuoler, 106 Wn.2d 500,512, 723 P.2d 1103 (1986). A
court does not abuse its discretion in denying a continuance under CR 56( t) where "( 1)
the requesting party does not offer a good reason for the delay in obtaining the desired
evidence; (2) the requesting party does not state what evidence would be established
through the additional discovery; or (3) the desired evidence will not raise a genuine issue
of material fact." Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989).
13
No. 32127-4-111
Gummo Bear v. Underwood
For the first time on appeal (and, notably, pro se) Mr. Bear argues that had the trial
court awaited appointment of a guardian of his person, he could have raised the defenses
of statutory tolling of the limitations period under RCW 4.16.190 or equitable tolling.
But critically, he did not point out these potential defenses in the trial court nor did he
identify evidence supporting the defenses and explain why only a guardian of his person
would be able to gather and present such evidence.
Because Mr. Bear's motion in the trial court fell far short of the showing required
to support a continuance under CR 56(t), the trial court did not abuse its discretion in
implicitly refusing to continue the summary judgment hearing.
(1) Dismissal ofthe complaint where no guardian or GAL
had been appointed.
Mr. Bear's second assignment of error is to dismissal of his complaint where no
guardian or GAL had been appointed. Having already concluded that the court
committed no error by failing to appoint a GAL or await appointment of a limited
guardian of Mr. Bear's person, the only remaining issue is whether the trial court erred by
dismissing the complaint.
We review summary judgment orders de novo, performing the same inquiry as the
trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860-61, 93 P.3d 108
(2004). The court views "the facts and the inferences from the facts in a light most
14
No. 32127-4-II1
Gumma Bear v. Underwood
favorable to the nonmoving party." Jones v. Allstate Ins. Co., 146 Wn.2d 291,300,45
P.3d 1068 (2002).
Mr. Underwood presented prima facie evidence of a statute of limitations defense
to the malpractice claim. Mr. Bear presented no affidavits or other proper evidence
demonstrating that the facts supporting the time bar were genuinely disputed. Summary
judgment was therefore proper.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Brown, J.
Lawrence-Berre ,J.
15
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944 F.2d 896
Hale (Juliette)v.Sullivan (Louis W., M.D.)
NO. 91-3162
United States Court of Appeals,Third Circuit.
AUG 08, 1991
Appeal From: W.D.Pa.,
McCune, J.
1
AFFIRMED.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Case No. 96-2048
v.
(D.C. CR-94-293-JP)
PHILLIP ALLI, (District of New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and the 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); 10th Cir. R. 34.1.9. 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. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Phillip Alli appeals his convictions after a jury trial for
conspiracy, fraudulent use, and attempted fraudulent use of counterfeit access devices.
He challenges the district court’s ruling that a hearsay statement of his co-defendant was
not admissible as a statement against interest under Fed. R. Evid. 804(b). Also before the
court is Mr. Alli’s motion to extend the time for filing his notice of appeal, which he filed
after the ten-day period expired under Fed. R. App. P. 4(b). We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
This appeal arises from Mr. Alli’s jury trial and conviction on one count of
conspiracy to commit fraudulent use of access devices in violation of 18 U.S.C. §§ 371,
1029(b)(2); two counts of fraudulent use of counterfeit access devices and aiding and
abetting in violation of 18 U.S.C. §§ 2, 1029(a)(1); and one count of attempted
fraudulent use of counterfeit access devices and aiding and abetting in violation of 18
U.S.C. §§ 2, 1029(b)(1).
These charges arose from events in late April 1994, when a woman accompanied
by a man--later identified as Roshunda Jones and Mr. Alli--rented a Chrysler New Yorker
at the Albuquerque, New Mexico airport using a counterfeit credit card and identification
in the name of Sandra Hill. Subsequently, Ms. Jones, using counterfeit credit cards and
identification in the names Sandra Hill and Taras Reilly, obtained or attempted to obtain
2
cash advances from six banks in the Albuquerque area. During one of the counterfeit
transactions attempted by Ms. Jones, a bank employee observed a man matching Mr.
Alli’s description looking around the lobby. Other than this identification, however, there
were no eyewitness accounts of Mr. Alli’s direct involvement in the attempts to obtain
cash advances. Following the sixth attempted transaction, a bank employee--alerted by
the counterfeit Sandra Hill credit card--telephoned the police, who immediately
apprehended Ms. Jones, Mr. Alli, and a third person (who was later released) pulling
away from the bank in a Chrysler New Yorker.
After waiving their Miranda rights, both Ms. Jones and Mr. Alli were questioned
by United States Secret Service Agent Richard Coburn. In the course of questioning, Ms.
Jones admitted obtaining one $1,500 cash advance and said she attempted another, but
was unsure of the location. Ms. Jones stated that she was responsible for the criminal acts
and denied that Mr. Alli was involved in obtaining the cash advances. During his
questioning, Mr. Alli admitted that he had come to Albuquerque with Ms. Jones for the
purpose of using the counterfeit credit cards. Mr. Alli stated that he had convinced Ms.
Jones to participate in the scheme, and that he had obtained the credit cards and drivers’
licences that she used. Based upon the foregoing evidence, Mr. Alli and Ms. Jones were
each charged in an eight-count indictment for fraudulent use, or attempted fraudulent use,
of counterfeit access devices and aiding and abetting. Ms. Jones pleaded guilty to one
count of fraudulent use of a counterfeit access device and received three years probation.
3
Both the government and Mr. Alli subpoenaed Ms. Jones to testify at Mr. Alli’s
trial. The government also provided a ticket for Ms. Jones to travel from Los Angeles to
Albuquerque for the trial. However, she did not appear. After the close of evidence at
trial, Mr. Alli sought to introduce Ms. Jones’s written confession in which she stated that
she was responsible for the criminal acts and that Mr. Alli had no involvement. Mr. Alli
proposed that this evidence be admitted under the exception to the hearsay rule which
permits the use of statements against interest made by an unavailable witness. Fed. R.
Evid. 804(b)(3). The district court denied Mr. Alli’s request and the jury convicted Mr.
Alli on one count of conspiracy, two counts of fraudulent use of counterfeit access
devices, and one count of attempted fraudulent use of counterfeit access devices.
II. DISCUSSION
A. Timeliness of the Notice of Appeal
We first address whether Mr. Alli’s notice of appeal is timely under Fed. R. App.
P. 4(b). The district court entered its judgment in this case on February 16, 1996. Mr.
Alli filed his notice of appeal and motion to extend the time for filing the notice of appeal
on February 28, 1996--two days after the ten-day filing deadline established in Fed. R.
App. P. 4(b). The district court granted Mr. Alli’s motion for an extension of time to file
his notice of appeal under Fed. R. App. P. 4(b), and gave him until March 4, 1996 to do
so. Although the government did not cross-appeal, the district court’s grant of Mr. Alli’s
4
Rule 4 (b) motion raises a jurisdictional question that we are obligated to consider. See
City of Chanute v Williams Natural Gas Co., 31 F.3d 1041, 1045 n.8 (10th Cir. 1994)
(holding that even in the absence of a challenge to a district court’s grant of a motion to
extend the time to file a notice of appeal, we consider the timeliness of a notice of appeal
because it “raises jurisdictional concerns, and, as always, ‘we have a duty to inquire into
our own jurisdiction.’” (quoting McGeorge v. Continental Airlines, Inc., 871 F.2d 952,
953 (10th Cir. 1989))), cert. denied, 115 S. Ct. 1254 (1995).
Rule 4(b) provides, in relevant part, that “[u]pon a showing of excusable neglect,
the district court may--before or after the time has expired, with or without motion and
notice--extend the time for filing a notice of appeal for a period not to exceed 30 days
from the expiration of the time otherwise prescribed by this subdivision.” Fed. R. App. P.
4(b). In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 113 S. Ct. 1489
(1993), the Supreme Court liberally construed the meaning of “excusable neglect” in the
context of a late filing in a bankruptcy proceeding. This decision, which has subsequently
been held to apply in a Rule 4(b) context, see Stutson v. United States, 116 S. Ct. 600,
602-03 (1996), concluded that the term “excusable neglect” “plainly contemplated that
the courts would be permitted, where appropriate, to accept late filings caused by
inadvertence, mistake, or carelessness, as well as circumstances beyond the party’s
control.” Pioneer, 113 S. Ct. at 1495. The Court pointed to four factors relevant to
determining whether to find excusable neglect: (1) the danger of unfair prejudice to the
5
nonmoving party; (2) the length of the delay and its potential impact on judicial
proceedings; (3) the reason for the delay, including whether it was within the reasonable
control of the movant; and (4) whether the movant acted in good faith. Id. at 1498; see
also City of Chanute, 31 F.3d at 1046. We review the district court’s determination of
excusable neglect for an abuse of discretion. Id. at 1045.
In this case, Mr. Alli alleges that he filed his notice of appeal two days late due to
the post office’s delay in forwarding defense counsel’s mail to a new office address.
Because of this delay, defense counsel did not receive the district court’s judgment until
February 28, 1996--the same day he filed the notice of appeal. On that same day, defense
counsel contacted the Assistant United States Attorney on the case to inform her that he
received the judgment late and would be filing an appeal. Defense counsel also spoke
with the district court judge, who advised defense counsel to file a motion to extend the
time for filing the notice of appeal, which he did that same day. In applying Pioneer’s
four-factor analysis to these facts, we conclude that the district court did not abuse its
discretion in granting a four-day extension to allow Mr. Alli to file his notice of appeal.
Because Mr. Alli properly filed his notice of appeal within the March 4, 1996 deadline set
by the district court, we hold that we have jurisdiction to hear this appeal.
6
B. Rule 804(b)(3) Evidence
We next address Mr. Alli’s substantive claim that the district court erred in ruling
that Ms. Jones’s written confession was not admissible as a statement against interest
under Fed. R. Evid. 804(b)(3). The district court denied Mr. Alli’s request on the grounds
that the written statement was hearsay evidence and did not allow the opportunity for
cross-examination. Because evidentiary rulings are committed to the sound discretion of
the district court, we review the district court’s refusal to admit this evidence only for an
abuse of discretion. United States v. Spring, 80 F.3d 1450, 1460 (10th Cir.), cert. denied,
117 S. Ct. 385 (1996). Moreover, we recognize that “[t]he need for deference to a trial
court ruling on a hearsay objection is particularly great because the determination of
whether certain evidence is hearsay rests heavily upon the facts of a particular case.”
United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir. 1988).
Rule 804 provides in relevant part:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:
...
(3) Statement against interest. A Statement which was at the time of its
making so far contrary to the declarant’s pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a reasonable
person in the declarant’s position would not have made the statement unless
believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of
the statement.
Fed. R. Evid. 804(b).
7
This court has held that a defendant seeking to admit hearsay evidence under Rule
804(b)(3) must demonstrate: “(1) an unavailable declarant; (2) a statement against penal
interest; and (3) sufficient corroboration to indicate the trustworthiness of the statement.”
United States v. Porter, 881 F.2d 878, 882 (10th Cir. 1989). In its appellate brief, the
government concedes that Ms. Jones’s statement was against her penal interest.
However, the parties dispute the other two elements under Rule 804(b)(3)--that is,
whether Ms. Jones was unavailable for trial and whether there was sufficient
corroboration of the trustworthiness of the statement. Even assuming that Ms. Jones was
unavailable for trial, we conclude that because Ms. Jones’s statement lacked sufficient
corroboration to support its trustworthiness, the district court properly excluded it from
evidence.
We first note that “the determination of the sufficiency of corroborating evidence
‘lies within the sound discretion of the trial court, which is aptly situated to weigh the
reliability of the circumstances surrounding the declaration.’” Porter, 881 F.2d at 883
(quoting United States v. Guillette, 547 F.2d 743, 754 (2nd Cir. 1976)). Mr. Alli argues
that Ms. Jones’s statement that she acted alone is corroborated by four factors: (1) Ms.
Jones gave the statement after being advised of her Miranda rights; (2) Ms. Jones was the
only person identified at each of the six banks, with the exception of the sighting of Mr.
Alli in the lobby of one bank; (3) there was evidence that Ms. Jones had flown by herself
nine days earlier to Albuquerque, rented a room and a car with a counterfeit credit card,
8
and purchased women’s perfume, purses, cookware, cameras, and electronic equipment
with the same card; and (4) the fraud investigator for one of the credit card companies
testified that, on an unidentified date, the fraudulent credit card was used to purchase one
airline ticket--apparently that which Ms. Jones used for her earlier visit to Albuqueque.
Aplt’s Br. at 13-14.
In contrast to the circumstances invoked by Mr. Alli, there are several other factors
which bring into question the trustworthiness of Ms. Jones’s statement exculpating Mr.
Alli. First, Mr. Alli was identified as being with Ms. Jones when renting the Chrysler
New Yorker at the Albuquerque airport. Second, a bank employee identified Mr. Alli as
the person walking around the bank lobby while Ms. Jones attempted to obtain a cash
advance using a counterfeit credit card. Third, after her last attempted transaction, Ms.
Jones entered a Chrysler New Yorker driven by Mr. Alli and the two of them were
apprehended shortly thereafter. Fourth, when the arresting officers advised Mr. Alli and
Ms. Jones of their Miranda rights, a police officer testified that Mr. Alli said to Ms. Jones:
“Don’t say anything, don’t say anything at all.” Rec. vol. IV, at 176. Finally, in his own
statements to Agent Coburn, Mr. Alli admitted that he came to Albuquerque with Ms.
Jones for the purpose of using the counterfeit credit cards, that he had convinced Ms.
Jones to participate in the scheme, and that he had obtained the credit cards and drivers’
licences that she used.
9
Although Mr. Alli offered evidence that Ms. Jones took a prior trip to Albuqueque
without him, there is overwhelming evidence indicating that the two acted together in this
counterfeit credit card scheme in which Ms. Jones was the front person. Thus, the record
contains little evidence to corroborate Ms. Jones’s statement that she acted alone and that
Mr. Alli was not involved. We therefore conclude that the district court did not abuse its
discretion in excluding Ms. Jones’s written statement from introduction at Mr. Alli’s trial.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court. The
mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
10
| {
"pile_set_name": "FreeLaw"
} |
495 F.Supp. 822 (1980)
Joseph L. GERMAN, Plaintiff,
v.
James R. KILLEEN, Wayne County Clerk, Joan M. Petitpren, Chairman, Wayne County Civil Service Commission, Henry R. Kozak, Vice-Chairman, Wayne County Civil Service Commission, Henry Majors, Wayne County Civil Service Commission, Richard G. Behler, Personnel Director and Secretary to the Commission, Helen Morgan, Assistant Personnel Director and Secretary to the Commission, Orville Tungate, Chief Deputy County Clerk, Defendants.
Civ. No. 78-70217.
United States District Court, E. D. Michigan, S. D.
August 25, 1980.
*823 *824 Ruth B. Acevedo, Detroit, Mich., for plaintiff.
William B. McIntyre, Jr., Asst. Corp. Counsel, Detroit, Mich., for defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART AND DENYING DEFENDANTS' MOTION TO DISMISS IN PART
COHN, District Judge.
I.
Before the Court are defendants' (with the exception of defendant Killeen) motions *825 to dismiss plaintiff's Second Amended Complaint on the grounds that plaintiff has failed to state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(6).[1]
Defendants claim plaintiff's allegations are insufficient to state a claim under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986, and they are immune from suit.
Jurisdiction is based on 28 U.S.C. § 1331 (original jurisdiction in matters involving a federal question), and 28 U.S.C. § 1343 (original jurisdiction for civil rights claims).
For the reasons stated, defendants' motions are granted in part.
II.
Plaintiff, a deputy court clerk for Wayne County, Michigan, was the subject of a 1975 grand jury investigation regarding alteration of court records. At the suggestion of defendant Killeen, plaintiff's superior and the appointing authority for plaintiff's position of deputy court clerk, plaintiff, in June 1975, went on a leave of absence pending the investigation and received vacation pay for the period rather than regular salary. After six weeks, plaintiff resumed his regular employment.
As a result of the grand jury investigation, plaintiff was charged on July 5, 1977 in a criminal complaint in the Recorder's Court for the City of Detroit with forgery and obstruction of justice. The charges alleged the false time-stamping of court papers which materially affected the course of a lawsuit.
Defendant Killeen immediately thereafter served plaintiff with an order of suspension for the period July 5, 1977 to October 4, 1977 without pay or benefits. Plaintiff appealed the suspension to the Wayne County Civil Service Commission (the Commission) which upheld the suspension. Plaintiff then filed a motion for writ of superintending control in the Wayne County Circuit Court which remanded the matter to the Commission. After a hearing, the Commission again affirmed the suspension. A grievance was filed by plaintiff's union representative but was later withdrawn.
A second order of suspension was issued on September 12, 1977 by defendant Killeen for the period October 5, 1977 to January 2, 1978. Plaintiff appealed this suspension by application for a writ of mandamus to the Wayne County Circuit Court, which denied the writ on the ground defendant Killeen had continuing authority to suspend so long as the subject of the suspension was an employee charged with a felony or misdemeanor involving moral turpitude. The Michigan Court of Appeals affirmed the denial, German v. Killeen, No. 77-4266 (Mich.App. July 20, 1978), and the Michigan Supreme Court denied leave to appeal. German v. Wayne County Clerk, 404 Mich. 811 (1978).
A third order of suspension was issued on December 27, 1977 by defendant Tungate, the Chief Deputy Court Clerk, for the period January 3, 1978 to April 2, 1978. No appeal was taken from this suspension.
A fourth order of suspension was issued on April 3, 1978 by defendant Tungate for the period April 3, 1978 to July 3, 1978. This suspension was cut short, however, when, on May 17, 1978, plaintiff was found not guilty in the Recorder's Court. Plaintiff was subsequently reinstated. The suspensions were thereafter withdrawn and compensation and benefits due plaintiff for the time he was under suspension were paid or credited.[2]
III.
As a result of the suspensions plaintiff filed suit[3] against defendants Killeen and Tungate, his superiors; Joan M. Petitpren, Henry R. Kozak and Henry Majors, members of the Commission; Richard G. Behler, *826 secretary and personnel director of the Commission; and Helen R. Morgan, secretary and assistant personnel director of the Commission. Plaintiff, in his Second Amended Complaint, alleges:
1) Defendants violated 42 U.S.C. § 1981[4] by depriving him of contractual rights arising from his employment, of the full and equal benefits of procedural rights stemming from his civil service status and for subjecting him to pain, penalties and exactions not provided for by the civil service rules and regulations and not imposed on white employees;
2) Defendants violated 42 U.S.C. § 1983[5] by depriving him of rights, privileges and immunities secured by the 4th, 5th and 14th amendments to the Constitution of the United States;
3) Defendants Morgan and Tungate violated 42 U.S.C. § 1985(3)[6] by depriving him of privileges and immunities under the Constitution and of equal protection of the law; and
4) Defendants Morgan, Behler, Petitpren, Majors and Kozak violated 42 U.S.C. § 1986[7] by conspiring not to prevent the alleged wrongful conduct toward him despite their power to do so.
These allegations are based on the claim that defendants' actions were outside their authority and contravened the rules and regulations of the Commission. Specifically included in the allegations are the wrongful suspension of plaintiff; the refusal to reimburse plaintiff for back salary and benefits; the failure of the Commission to promulgate, review and revise the civil service rules and regulations; and the libel and/or slander of plaintiff in connection with the criminal charges that were pending against him. Alternatively, plaintiff claims that even if these actions were within defendants' authority, the rules and regulations of the Commission are violative of his rights, privileges and immunities under the constitutions and statutes of the United States and of the State of Michigan.
Defendants, in their motions, say:
1) Plaintiff's allegations are insufficient to establish a claim under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986;
2) Defendants are each clothed with various degrees of immunity against the wrongful acts complained of;
*827 3) Some of the defendants simply had no power to perform the acts plaintiff complains of while other defendants performed those acts totally within the parameter of their official offices; and
4) Any claim on the suspension of September 12, 1977 is barred by res judicata and/or collateral estoppel, its legality having already been litigated before the Wayne County Circuit Court, the Michigan Court of Appeals and the Supreme Court of Michigan.
IV.
A.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the allegations of the complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir. 1975). Thus the Court must determine whether, in a light most favorable to plaintiff assuming the allegations true, the complaint, liberally construed, states a valid claim for relief. 5 Wright & Miller, Federal Practice and Procedure 601 (1969).
"In appraising the sufficiency of the complaint we follow, of course, the accepted rule 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 which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
The complaint must set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Fed.R. Civ.P. 8; Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Conclusory allegations, however, should be avoided, especially when no facts are alleged to support the conclusions or when the allegations are contradicted by the facts themselves. Vermilion Foam Products Co. v. General Electric Co., 386 F.Supp. 255 (E.D.Mich.1974).
B.
Plaintiff initially charges defendants with violating 42 U.S.C. § 1981 claiming a deprivation of his contractual rights stemming from his employment, of the full and equal benefit of procedural rights stemming from his civil service status and for subjecting him to punishment, pain, penalties and exactions not provided for by civil service rules and regulations and not imposed on white employees.
Section 1981, originally enacted as part of the Civil Rights Act of 1866,[8] was intended to uproot the institution of slavery and to eradicate its badges and incidents.[9]Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977). It protects against discrimination based on race or alienage by providing all persons with the same right to make and enforce contracts as enjoyed by white citizens. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).
To invoke the protection of § 1981, plaintiff must establish that defendants placed more stringent requirements on him because of his race; or that he was unable to make or enforce a contract that a white person could make or enforce; or that he was suspended because of dissimilar treatment caused in part by his race. Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). Plaintiff must show that ". . . his employment terms vary from those which his employer accords to similarly situated white workers." Id. at 505. These allegations should be supported by reference to specific acts, practices or policies which resulted in the discrimination complained of.[10]United *828 Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir. 1979).
Plaintiff, in his Second Amended Complaint, alleges that he was charged with a felony; that he was subsequently suspended from his job; and that he is a black man. These allegations, considered liberally as required by Fed.R.Civ.P. 8(f), fail to satisfy the requirements for a § 1981 cause of action. There is no claim, nor are there facts alleged from which to infer, that similarly situated white employees were treated differently than plaintiff; that plaintiff was prevented from making or enforcing a contract a white person was allowed to make or enforce; or that plaintiff's employment terms varied from those accorded white workers. While plaintiff does claim to have suffered punishment, pains, penalties and exactions not imposed on white employees, there is nothing alleged in support to show how or to what extent this occurred. In other words, there is nothing alleged to allow the Court to find that plaintiff can prove any set of facts in support of his claim to entitle him to relief. Defendants' § 1981 violation is stated as a mere conclusion of law.
C.
Plaintiff's claim under 42 U.S.C. § 1983 suffers from the same deficiencies. Section 1983 affords protection against violation of any rights, privileges or immunities secured by the Constitution and laws of the United States by a person acting under color of state law. To establish a claim under § 1983 plaintiff must allege and prove that defendants acted under color of state or local law, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); that plaintiff was deprived of specific, articulable rights, privileges or immunities secured by the Constitution and laws of the United States, Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961); Landrum v. Moates, 576 F.2d 1320 (8th Cir.), cert. den., 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1978); and that defendants' conduct was a cause in fact of plaintiff's deprivation. Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966); S. Nahmod, Civil Rights and Civil Liberties Litigation 33-34, 59 (1979). In support of these allegations, plaintiff must set forth highly specific facts. "It is not sufficient to state conclusionary allegations without support in the facts alleged." Kregger v. Posner, 248 F.Supp. 804, 806 (E.D.Mich.1966).
While plaintiff specifies in general terms the constitutional right which he was allegedly deprived of, namely the right to be secure against unreasonable seizures under the Fourth and Fourteenth amendments, the right not to be deprived of property without due process of law under the Fifth and Fourteenth amendments, and the right to equal protection under the Fourteenth amendment, he fails to allege facts to support these allegations. Nothing is said in the Second Amended Complaint to indicate when or by what acts defendants deprived plaintiff of his rights nor whether plaintiff has in fact asserted a constitutional injury sufficient to invoke § 1983-i. e., whether plaintiff has suffered deprivation of a federal right secured by the Constitution and laws of the United States.
Plaintiff alleges he was wrongfully suspended in contravention of civil service *829 rules and regulations. This, however, is not a violation of a federal right or privilege.
"In order for [plaintiff] to bring a claim under 42 U.S.C. § 1983, a specific and articulable constitutional right must have been transgressed and a cognizable claim for relief must be stated on the face of the pleading. . . . Rights which derive solely from state law, however, cannot be the subject of a claim for relief under 42 U.S.C. § 1983 . . .. Only when a violation of state law results in an infringement of a federally protected right can a cause of action be said to exist. . . . `A violation of a federal constitutional provision must be shown.'" (citations omitted).
. . . . .
". . . the violation of any rights that might arise exclusively by failure to comply with some of the procedures provided by city charter, ordinances and regulations thereunder, do not rise to the level of a federal constitutional violation."
State of Mo. ex rel. Gore v. Wochner, 620 F.2d 183 (8th Cir. 1980).
D.
Plaintiff further claims that defendants Killeen, Morgan and Tungate conspired together "to deprive Your Plaintiff of the equal privileges and immunities under the laws and of equal protection of the laws," under 42 U.S.C. § 1985(3), and that defendants Morgan, Behler, Petitpren, Majors and Kozak failed to prevent such conspiracy despite their knowledge and ability to do so under 42 U.S.C. § 1986.
Section 1985(3) makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike § 1983, "color of law" is not necessary for a § 1985 action; however, it is necessary to allege and prove a conspiracy, the acts in furtherance thereof and that these acts stemmed from a "class-based" animus. Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Family Forum v. Archdiocese of Detroit, 347 F.Supp. 1167 (E.D.Mich.1972). The conspiracy ". . . must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Class-based motivation is an essential element of § 1985(3) claim.
"The language [of the statute] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." (Emphasis in original).
Id. at 102, 91 S.Ct. at 1798.
The Second Amended Complaint fails to allege with any particularity the existence of any class-based, invidiously discriminatory animus behind the actions of defendants which affected plaintiff. Paragraph 17 of the Second Amended Complaint alleges "That each and all of the acts of the Defendants alleged herein were done to Plaintiff, a black person, on the basis of his race and color." The allegations in support merely indicate defendants' actions were directed against plaintiff as an individual because he was charged with a felony, which, according to Rule 14(i) of the commission's rules (attached as an exhibit to the Second Amended Complaint) is a proper ground for "suspension, demotion or removal of any employee in the classified civil service. . . ." Nothing is alleged to support a claim that defendants' actions were part of a general pattern of discrimination against plaintiff based on race or against plaintiff as a member of some identifiable class.
In addition, there is nothing alleged to support a claim that a conspiracy of any kind existed among the defendants or from which a conspiracy might be inferred. The Second Amended Complaint offers conclusory allegations that defendants conspired together to deprive plaintiff of his rights, rather than when or by what acts or means they are claimed to have conspired. This is not enough. Copley v. Sweet, 133 F.Supp. 502 (W.D.Mich.1955), aff'd, 234 F.2d 660 (6th Cir. 1956).
Since no claim is stated under § 1985(3), no claim for relief can lie under *830 § 1986 which creates a cause of action only in those situations where a person either neglects or refuses to prevent a conspiracy to deny equal protection despite the power to do so. A § 1986 claim is totally dependent upon § 1985 for vitality. Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975); Doyle v. Unicare Health Serv., Inc., Aurora Center, 399 F.Supp. 69 (N.D.Ill.1975), aff'd, 541 F.2d 283 (7th Cir. 1976).
V.
The Court is not unmindful of the stringent test that must be met before a civil rights lawsuit can be dismissed on the pleadings. Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972). For this reason the remainder of defendants' grounds are considered.
A.
Defendants each claim some degree of immunity from suit. Defendants, Petitpren, Kozak and Majors claim judicial, quasi-judicial, legislative, and quasi-legislative immunity; defendant Behler claims quasi-legislative immunity; defendant Morgan claims legislative immunity; and defendant Tungate claims judicial immunity. The mere fact that defendants assert such immunity, however, does not per se establish that they are entitled to it.
Immunity was developed at common law on behalf of public officials charged with making decisions in the course of performing their official duty.[11] Its purpose is to prevent "1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required by the legal obligations of his position to exercise discretion; 2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good," Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974), and 3) the fear that threat of personal liability might deter citizens from holding public office. Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975).
"If those who exercise governmental responsibilities are not afforded some protection from liability, it is feared that they will carry out their duties with excessive caution and will avoid making difficult decisions, which must be made if the public's business is to be effectively administered."[12]
Federal courts have extended varying degrees of immunity to legislators, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), to judges and police officers, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), as well as to different state and local officials acting within the scope of their duties.[13] By the nature of their positions defendants Petitpren, Kozak, Majors, Behler and Morgan function at different times as legislators promulgating statutes, rules and regulations, and as judges regarding persons suspended or removed from county service.
Courts have consistently held, however, that municipal and county level personnel in positions similar to defendants do not enjoy absolute immunity, Thomas v. Younglove, 545 F.2d 1171 (9th Cir. 1976); Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975), but instead are clothed with qualified immunity.[14] In Nelson v. Knox, 256 F.2d *831 312 (6th Cir. 1958), plaintiff sought damages against city commissioners for allegedly destroying his garage business by passing arbitrary and discriminatory ordinances. The Court of Appeals held the commissioners were not clothed with absolute immunity, but only qualified immunity for acts done in good faith in the performance of their official duty. Accord, Parine v. Levine, 274 F.Supp. 268 (E.D.Mich.1967). In relying on Cobby v. City of Malden, 202 F.2d 701 (1st Cir.1953) the Court of Appeals noted, however, that members of the city council would be liable where they knew their actions would result in a deprivation to plaintiff of a right or privilege secured by the United States' Constitution. See also, Curry v. Gillette, 461 F.2d 1003 (6th Cir.1972), wherein the Court of Appeals held that good faith qualified immunity was available to member of the board of mayor and alderman of municipality. Defendants then, possess, at most, qualified immunity.
The Supreme Court in Gomez v. Toledo, ___ U.S. ___, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) recently held that in asserting qualified immunity the burden is on a defendant to plead good faith as an affirmative defense. Accord, Jones v. Perrigan, 459 F.2d 81 (1972).
"Since qualified immunity is a defense, the burden of pleading it rests with the defendant.
. . . . .
It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith."
Gomez, supra, at ___, 100 S.Ct. at 1924.
Defendants in their motions merely set forth conclusory statements that they are clothed with immunity without affirmatively pleading good faith. Under Gomez this is not enough and therefore the bare claims of defendants Petitpren, Kozak, Majors, Behler and Morgan for immunity will not protect them from being required to defend.
Defendant Tungate's claim of judicial immunity is likewise inadequate for the reason that he is not entitled to such absolute immunity. In Count II of the Second Amended Complaint defendant Tungate is charged with being the complaint in a criminal matter from which the disciplinary action against plaintiff arose. It is based on this status that defendant Tungate apparently claims immunity.
Judicial immunity holds one absolutely immune from suit for acts committed within their judicial jurisdiction. Pierson v. Ray, 386 U.S. 547 87 S.Ct. 1213, 18 L.Ed.2d 288 (167). This defense is a broad one and by its very nature is limited to judges or persons acting in a judicial capacity where their performance is an integral part of the judicial process. Id. It does not, however, protect against liability arising from non-judicial activity. Lynch v. Johnson, 420 F.2d 818 (6th Cir.1970).
Nothing is presented to show that defendant Tungate was performing any judicial act or function as the complaint in a criminal matter to entitle him to the defense of judicial immunity. At very best, defendant Tungate, as Chief Deputy Court Clerk is clothed with a qualified privilege. Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973). In view of Gomez v. Toledo, supra, an affirmative pleading is required which is absent here.
B.
Defendants also claim that any action on plaintiff's suspension of October 5, 1977 to January 2, 1978 is precluded by collateral *832 estoppel and/or res judicata, having already been litigated before the Wayne County Circuit Court, the Michigan Court of Appeals and the Michigan Supreme Court.
While collateral estoppel and res judicata are two distinct doctrines, they have been treated as one which has resulted in a general definition which amounts to the prevention of relitigation of the same cause of action or the same facts or issues in a subsequent action. 46 Am.Jur.2d Judgments 397 § 397 (1969). Plaintiff challenges his October 5, 1977 suspension on the grounds it was issued without authority and contravenes the rules and regulations of the Commission, and as such violates his constitutional rights. Plaintiff appeared this suspension by application for a writ of mandamus to the Wayne County Circuit Court, and upon denial, then to the Michigan Court of Appeals and the Michigan Supreme Court. In keeping with the principle above cited, it would appear that plaintiff has had his day in court on the suspension of October 5, 1977 and that, therefore, he is precluded from seeking further relief. In view of the Court's determination on the previous issues, however, there is no need to decide the validity of this claim now.
C.
Defendants further argue that County VII of the Second Amended Complaint charging libel and/or slander, fails to state a cause of action as to them since it makes no specific allegations regarding their participation nor specifically mentions their names. Paragraph 107 of the Second Amended Complaint alleges that the "named defendants" are guilty of libel and/or slander because their "actions and non-feasance or malfeasance has caused [plaintiff] to be an object of derision and humiliation and an outcast among his peers and in society generally." The claim is premised on statements allegedly made by defendant Killeen to the news media and the resulting newspaper article about plaintiff's refusal to testify before a grand jury in a related criminal matter.
It is generally accepted that a claim based on libel/or slander requires plaintiff to plead and prove that the matter complained of is false and defamatory and published or communicated to a third person with malice or bad intent. Prosser, Law of Torts §§ 111-113 (1971). Every person who either directly or indirectly publishes or assists in the publication of an actionable defamatory statement is liable for it. Bowerman v. Detroit Free Press, 279 Mich. 480, 272 N.W. 876 (1937).
There are no allegations in the Second Amended Complaint that defendants had any involvement in the publication of the allegedly defamatory statements. Plaintiff merely claims defendants' actions presumably in disciplining plaintiff, caused him humiliation. Again this does not appear to be enough to constitute a cause of action against defendants in libel or slander and would therefore entitle defendants to dismissal of this aspect of the case, however, there is no need to decide this now considering the Court's determination of the rest of the case.
VI.
While Wayne County may decide that participation in a crime involving moral turpitude may render an employee unqualified for employment, this criterion must be applied equally to all of its employees, regardless of race. There is nothing in the Second Amended Complaint to support the claim that defendants treated plaintiff unequally or that they deprived him of rights, privileges or immunities secured by the constitution or that they deprived him of contractual or procedural rights arising from his employment. An examination of the Second Amended Complaint merely shows a series of broad conclusory statements unsupported, for the most part, by specific allegations of fact.
In fact, there is a basis for the court to conclude defendants acted within the bounds of their authority as dictated by the rules of the Commission. Rule 14 § 1(i) provides for suspension, demotion or removal of an employee charged with the commission *833 of a felony or misdemeanor involving moral turpitude, and §§ 9 and 10 provide for appeal procedures to the Commission as well as authority for the Commission to use discretion in either affirming, modifying or revoking orders of discipline. While plaintiff claims such rules and regulations violate his constitutional rights, this has no bearing on the validity of defendants' conduct since, under the circumstances, they had no duty to question or defy rules which were presumed valid and had not yet been attacked. Hanna v. Drobnick, 514 F.2d 393 (6th Cir. 1975).
Since this case was first filed on January 31, 1978, plaintiff has twice amended his original complaint. While there are probably a number of assertions in the latest version that plaintiff will be unable to support with factual allegations sufficient to state a claim under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986 there are others which plaintiff may be able to reframe in an amended complaint so as to defeat a motion to dismiss.
Therefore, for the reasons stated, defendants' motions to dismiss with the exception of defendant Tungate's motion as to the suspension of October 5, 1977,[15] are granted with plaintiff given leave to file a third amended complaint pursuant to Fed.R. Civ.P. 15.
SO ORDERED.
NOTES
[1] Defendant Killeen's motion to dismiss was denied on February 2, 1979.
[2] A representation to this effect has been made to the Court by defendants' counsel. Plaintiff apparently does not dispute it.
[3] Plaintiff initially filed suit on January 31, 1978. The first amended complaint was filed on April 21, 1978 and the second amended complaint was filed on July 31, 1978.
[4] 42 U.S.C. § 1981 provides:
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
[5] 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
[6] 42 U.S.C. § 1985(3) provides in pertinent part:
"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."
[7] 42 U.S.C. § 1986 provides in pertinent part:
"Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented . .."
[8] Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.
[9] The legislative history of § 1981 indicates an intent to prevent the most egregious forms of conduct by whites reacting to the recent emancipation of the southern slaves. Cong.Globe, 36th Cong., 1st Sess. 339-517 (1866).
[10] There is some authority to suggest that a plaintiff must also prove discriminatory intent when alleging a violation of § 1981, much the same way intent is needed to prove a violation of the equal protection clause of the Fourteenth Amendment. See, City of Milwaukee v. Saxbe, 546 F.2d 693 (7th Cir. 1976); Guardians Ass'n. v. Civil Service Comm'n., 431 F.Supp. 526 (S.D. N.Y.1977). The Supreme Court, however, has never directly addressed this issue; in dicta it has inferred that it would require such a showing. See, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Note, "Racially Disproportionate Impact of Facially Neutral Practices-What Approach Under 42 U.S.C. Sections 1981 and 1983?", 1977 Duke L.J. 1267 (1977). But, see, County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), where Justice Powell, in his dissenting opinion, said that it is an open question whether or not 42 U.S.C. § 1981 requires proof of racially discriminatory intent. 440 U.S. at 636, 99 S.Ct. at 1385.
The Court of Appeals for the Sixth Circuit in Long v. Ford Motor Co., 496 F.2d 500 (1974) gave some indication that it does not require proof of specific intent when it said that a violation of § 1981 could be shown "by proof either that intentional racial prejudice entered into [an employee's] treatment or that a facially neutral practice . . . operates discriminatorily against minority employees." 496 F.2d 500, 506.
[11] Official Liability: Immunity Under Section 1983, p. 6, The National Association of Attorneys General, July 1979.
[12] Id. at 7.
[13] Prison officials and officers, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); prosecutors, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); local school board members, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); and state governors and other executive officers, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
[14] In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Supreme Court extended absolute immunity of federal and state legislators to regional legislators of an interstate agency created by interstate compact. However, it did not decide whether absolute immunity extended to legislative functions at the local level.
In Gorman Towers, Inc. v. Bogoslavsky, 607 F.2d 626, 49 U.S.L.W. 2081 (7/22/80), however, the Eights Circuit Court of Appeals recently held that members of a municipality's board of directors were absolutely immune from liability under § 1983 for legislating allegedly unconstitutional zoning ordinances. The Court of Appeals found the same compelling reasons for extending absolute immunity to local level legislators as have existed for federal, regional and state legislators. The Sixth Circuit has yet to indicate any agreement with this point of view.
[15] With regard to this suspension apparently defendant Tungate was acting in the role of the appointing authority and, therefore, to the extent defendant Killeen remains a party as a result of his action as appointing authority, defendant Tungate remains a party.
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671 P.2d 1222 (1983)
Martin KRUCHECK, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 83-35.
Supreme Court of Wyoming.
October 20, 1983.
Thos. J. Fagan and James W. Fagan of Fagan & Fagan, Casper, for appellant.
A.G. McClintock, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen.; Mary B. Guthrie, and John W. Renneisen, Senior Asst. Atty. Gen., Cheyenne, for appellee.
Before ROONEY, C.J., and RAPER[*], THOMAS, ROSE and BROWN, JJ.
*1223 BROWN, Justice.
Appellant was convicted by a jury of second-degree murder which is defined in § 6-2-104, W.S. 1977 (June 1983 Replacement). In his appeal, he has raised several issues. Because of our disposition of the case, we only address whether the trial court erred in instructing the jury that "the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice."
We reverse and remand.
At approximately six o'clock p.m. on February 20, 1982, appellant called his girl friend, Dianne Welsh, because the preceding day she had informed him she was returning to her ex-husband, John Welsh. During their telephone conversation on the 20th, Dianne Welsh told appellant that her ex-husband had arrived and spent the previous night with her. Appellant became angry and threatened to kill John Welsh.
Shortly after the telephone conversation, appellant arrived at the residence of Dianne Welsh and rang the doorbell. John Welsh answered the door, and appellant struck him. As Welsh started to fall, appellant swung his arm around and pointed a gun at him. The gun fired mortally wounding Welsh. Thereafter appellant was charged with first-degree murder.
The case then proceeded to trial on September 20, 1982. The jury was instructed on first-degree murder, second-degree murder, and manslaughter. It was also instructed over an objection that: "You are instructed that the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice."
After the jury retired for its deliberations, it requested additional instruction. The district court provided it with the following supplemental instruction:
"The Jury having submitted to the Court the following question: `Does the presence of malice preclude a manslaughter conviction?'; the Court instructs the Jury as follows: `Not necessarily', but a finding of malice, where the other elements for voluntary manslaughter have also been found, would preclude a manslaughter conviction."
The jury found appellant guilty of second-degree murder after receiving the additional instruction.
Rule 303(c) of the Wyoming Rules of Evidence provides:
"Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt." (Emphasis added.)
By using the words "the court shall instruct," the rule mandates that when the rule becomes applicable, the court must instruct the jury as is provided.
Here, the jury was instructed that "the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice." That constituted the submission to the jury of "the existence of a presumed fact," thus triggering the operation of Rule 303(c), supra. Under that rule the jury then must have been told explicitly that the presumption was permissive and not mandatory in nature.
Rule 303(c), W.R.E., also requires that when the existence of an element of a crime may be presumed, the jury shall be instructed that the element must be proven beyond a reasonable doubt. Here, malice was an element of the offense of second degree murder. Accordingly, contemporaneous with a jury instruction that malice may be presumed from the use of a deadly weapon, the jury should also have been told that the existence of malice must be proven beyond a reasonable doubt. The trial court's failure to so instruct in this case constituted error.
*1224 Further, not only was the court's failure to so instruct error under the Wyoming Rules of Evidence, it was also error under the due process clause of the Fourteenth Amendment to the United States Constitution. The United States Supreme Court has stated that the Fourteenth Amendment requires states to "prove every element of a criminal offense beyond a reasonable doubt." Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39, 43 (1979).[1] This principle was expounded upon at length in the Sandstrom decision and held to prohibit not only a mandatory presumption, but any presumption which a reasonable juror may read as mandatory.
In that case, Sandstrom was charged with the crime of "purposely or knowingly caus[ing] the death of Annie Jessen." The jury was instructed that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, supra, 442 U.S. 512, 99 S.Ct. 2453, 61 L.Ed.2d 43. The Supreme Court observed that it was possible for the jury to have viewed that instruction as requiring it to apply the presumption. Specifically, that court noted:
"* * * They [the jurors] were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory. [Citations.]" Sandstrom v. Montana, supra, 442 U.S. 515, 99 S.Ct. 2454, 61 L.Ed.2d 45.
In a case decided within two weeks of Sandstrom, the United States Supreme Court set out an example of a presumption that the constitution sanctioned. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). There, three males were prosecuted for possession of a firearm. The New York statute in question specifically provided that the presence of a firearm in an automobile was presumptive evidence of its possession by all persons occupying the vehicle. The judge instructed the jury that:
"`Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession.
"`In other words, those presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is [sic] effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.
"`The presumption or presumptions which I discussed with the jury relative to the drugs or weapons in this case need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case.'" (Emphasis added.) County Court of Ulster County v. Allen, supra, 442 U.S. 161, 99 S.Ct. 2227, 60 L.Ed.2d 794, fn. 20.
The Court concluded that the instructions comported with the requirements of the Fourteenth Amendment.
The case before us, however, cannot be distinguished from Sandstrom, supra, on the basis of County Court of Ulster County, supra. Here the challenged instruction indicated that the use of a deadly weapon raised a presumption of malice. The word "may" was not included as it had been in County Court of Ulster County v. Allen, supra. Nothing in the instructions told the jurors that the presumption was not mandatory in nature. Granted, other instructions were given requiring the jury to find the elements of the crime beyond a reasonable doubt in order to convict. But that was also done in Sandstrom, and the Supreme Court stated that that was not enough.
*1225 "The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proved guilty, and that the State had the burden of proving beyond a reasonable doubt that the defendant caused the death of the deceased purposely or knowingly. [Citation.] But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that although intent must be proved beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. * * *" Sandstrom v. Montana, 442 U.S. 518, 99 S.Ct. 2457, 61 L.Ed.2d 47, fn. 7.
Clearly the Wyoming Rules of Evidence were violated, as was the Fourteenth Amendment. When a jury is authorized to make use of presumptions, it must be informed that it may refuse to use them. As this court has previously said:
"* * * The use of the presumption assists the prosecutor in not having to produce evidence of intention, at least until the presumption is rebutted. But it clearly denies the jury of the opportunity to make up its own minds on the question of intention because there is no probative evidence introduced from which it can base its own finding. In this respect, the presumption instruction is diametrically opposite that of the use of deductions and inferences which the jury may logically and properly draw from facts and circumstances introduced which point toward intention. [Citations.]" Stuebgen v. State, Wyo., 548 P.2d 870, 884-885 (1976).
The only question remaining is whether the error should be considered harmless. There is some dispute concerning whether the harmless error doctrine may ever be used to ignore the Sandstrom error. In Connecticut v. Johnson, ___ U.S. ___, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the Court split on the question and failed to resolve it. We do not now need to decide this question since the error cannot be said to be harmless beyond a reasonable doubt.
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Court held "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." We have previously adopted and applied this test in Wyoming. Ortega v. State, Wyo., 669 P.2d 935 (1983).
From the jury's question to the judge during its deliberation it is clear that they were concerned about malice. The question would indicate that the jury felt compelled to find malice, but wanted only to convict appellant of voluntary manslaughter. Despite the judge's opening disclaimer, his instruction to the jury provided that if it had found all the elements of voluntary manslaughter, as well as malice, it must convict appellant of second-degree murder.
The resulting conviction of second-degree murder is a demonstration that the jury found malice and all of the elements for voluntary manslaughter. In light of the jury's apparent hesitancy in finding defendant guilty of second degree murder, one logical conclusion is that they felt compelled to presume malice from the use of the gun because of the instructions in the case. It is then reasonable to conclude that if the jury had known that the presumption of malice was not mandatory, it may not have convicted appellant of second-degree murder. The error, then, cannot be regarded as harmless beyond a reasonable doubt, and the conviction must be reversed.
Reversed and remanded for further proceedings not inconsistent with this opinion.
RAPER, Justice, Retired, dissenting, with whom ROONEY, Chief Justice, joins.
I dissent and would have affirmed.
*1226 The substance of what follows was intended to be the opinion of the court when first circulated but, due to the vicissitudes of the appellate process could not gather a majority, so it now assumes a dissenting posture. There is more to this case than has been discerned by the superficial and airily abstract views of the majority. The weakness of the majority lies in the facts and all the procedure, including instructions, followed by the trial judge so I will considerably enlarge upon them.
I will also discuss all of the issues because they may arise again during the course of the new trial which is mandated as well as be raised again on appeal, if the defendant is again found guilty of murder in the second degree. It is proper for this court to decide questions which are bound to arise again in a new trial of the case. Hursh Agency, Inc. v. Wigwam Homes, Inc., Wyo., 664 P.2d 27 (1983); Rocky Mountain Oil and Gas Association v. State, Wyo., 645 P.2d 1163 (1982); Madison v. Marlatt, Wyo., 619 P.2d 708 (1980); McGuire v. McGuire, Wyo., 608 P.2d 1278 (1980); Chicago & N.W. Ry. Co. v. City of Riverton, 70 Wyo. 84, 119, 247 P.2d 660 (1952). As said in Chicago & N.W. Ry. Co. v. City of Riverton, supra, it is this court's duty to do so. While the above citations are to civil cases, the same principle would apply to criminal cases. Besides that, for the purposes of this appeal, it accords an opportunity to examine more facts which support my position.
For those, if any, who want only to read my views with respect to the majority's bare-bones disposition, see Parts IV and V of this dissent. I strongly suggest that at least the trial judge and counsel read this dissent in its entirety and note in particular the discussion with respect to WPJIC § 7.502, in which there is an error in the second element in that it does not follow the statute, prompting the trial judge to give the corrective instruction about which appellant complains in his fifth issue.
In this appeal, we are called on to review the second-degree murder[1] conviction of Martin L. Krucheck (appellant). He was tried for first-degree murder and found guilty by a jury of the lesser-included offense of second-degree murder. Appellant phrases the issues to be in the order stated:
1. "Whether the defendant should have been allowed to change his plea from `not guilty' to that of `not guilty by reason of mental illness or deficiency' and/or `unfit to proceed by reason of mental illness or deficiency', which Motion was denied by the Court?"
2. "Whether the evidence supported the jury's verdict of `guilty' of Murder in the Second Degree?"
3. "Whether the Court properly refused to give defendant's requested instructions designated `A', `B', `C', and `D'?"
4. "Whether the Court erred in giving instructions numbered `10', `21' and `22' over the objections of the defendant?"
5. "Whether the Court erred in instructing the jury, during the jury's deliberations, on the issue of malice, as contained in the supplemental instruction?"
It should be noted that one of the bases upon which the majority founds its decision is Rule 303(c), W.R.E., which caused me concern and I first pointed that out to the court. In the case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the other basis for the majority was cited to the court by the State as it ethically should have been. But both are easily overcome, in my view of the whole case.
On February 20, 1982, appellant shot and killed John Welsh at the apartment where Dianne Welsh, John's ex-wife, was residing. In doing so, appellant brought to a close, once and for all, a triangle relationship involving *1227 appellant, Dianne Welsh, and John Welsh.
John and Dianne Welsh had been married; they were divorced in June, 1981 after a year of marriage. Beginning in July, 1981, one month after her divorce, Dianne and appellant began a relationship that soon became intimate. Their relationship developed to the point that marriage was contemplated, but never took place because Dianne still had strong feelings for her ex-husband, John, and so was unable to make a commitment to appellant.
During the fall and winter of 1981, Dianne vacillated between her ex-husband, John, and appellant. She, at various times during that period, enjoyed an intimate relationship with both men. Although Dianne lived with appellant off and on during their relationship, she moved out several times to live with her ex-husband, John. In early January, 1982, she moved out of appellant's residence for the last time and accompanied her ex-husband to Evanston, Wyoming.
Dianne remained in Evanston with John for six or seven weeks with brief visits back to Casper. On those return visits, she saw and spoke to appellant. The week before John's death, John and Dianne decided to resume residence in Casper. Dianne first returned to Casper and there awaited John's arrival. On February 19, 1982, the night before John's death, Dianne saw appellant. She told appellant that although she still had "feelings" for him, she was back together with John. Later that night, John arrived from Evanston and spent the night with Dianne.
On February 20, appellant called Dianne. He asked her if John had arrived the night before and if they had slept together. When Dianne told him that John had arrived the night before and that they had indeed slept together, appellant became very angry. Appellant's anger rose to the point that he made threatening statements to Dianne. He threatened to kill John. John, upon learning of the threats, made plans to leave town to avoid a confrontation with appellant. He never had time to carry out that plan.
Shortly after that telephone conversation, appellant knocked on the door where Dianne and John were staying. John answered the door and was confronted by appellant. Appellant greeted John with the remark, "`Hi, zit face,'" and struck him, knocking him down. As John was falling, appellant's arm swung around and a revolver that he was holding discharged. The shot hit John in the chest, fatally wounding him.
After the shooting, appellant expressed remorse and disbelief at what had just transpired. He remained at the scene and awaited the police. When the police arrived, he was arrested and charged with the murder of John Welsh.
The criminal complaint and subsequent information filed in this case charged appellant with first-degree murder. At his arraignment in June 1982, appellant entered a plea of not guilty. In July 1982, appellant filed the first of several motions requesting the court to allow him to change his plea from "`not guilty'" to "`not guilty by reason of mental illness or deficiency' and/or `unfit to proceed by reason of mental illness or deficiency.'" All were denied.
The case proceeded to trial. Appellant was tried before a jury on the charge of first-degree murder. The jury was instructed on first-degree murder as well as the lesser-included offenses of second-degree murder and manslaughter. After deliberation, in which the court was requested to give and did give a supplemental instruction on manslaughter, the jury found appellant guilty of second-degree murder. This appeal followed. Other facts pertinent to an adequate discussion of the issues will be developed as necessary.
I
The appellant waived a preliminary hearing before the county court. An information was thereupon filed in the district court. Thereafter at arraignment appellant entered a plea of not guilty. Appellant then filed a motion for an order allowing *1228 him to enter a plea of "`not guilty by reason of mental illness or deficiency' and/or `unfit to proceed by reason of mental illness or deficiency'" on the ground that "the best interests of justice would be served." From the court file it appears an order was entered denying the motion for the reason no cause was shown as required by § 7-11-304(c), W.S. 1977. It also appears that the presence of a reporter was waived. Apparently, the only showing was that appellant's counsel had talked with a psychiatrist and she agreed appellant should be permitted to change his plea. No evidence was taken or documentary support presented. There was then filed a motion for rehearing of the motion for change of plea, supported by a memorandum by counsel for appellant. In it are related various conversations with the same local psychiatrist indicating a present mental condition of some undefined sort. It appears the doctor was not conveniently available for more precise information.
A second motion for rehearing was filed but no action was taken. As a preliminary matter, on the trial date appellant's counsel renewed the motion for rehearing. The trial transcript discloses it was then overruled.
Section 7-11-304(c), supra, provides:
"(c) Evidence that a person is not responsible for criminal conduct by reason of mental illness or deficiency is not admissible at the trial of the defendant unless a plea of `not guilty by reason of mental illness or deficiency' is made. A plea of `not guilty by reason of mental illness or deficiency' may be pleaded orally or in writing by the defendant or his counsel at the time of his arraignment. The court, for good cause shown, may also allow such a plea to be entered at a later time. Such a plea does not deprive the defendant of other defenses." (Emphasis added).
The appellant must make more of a showing of good cause than that presented at the unreported hearing, as reflected by the court's order overruling the motion. If the local psychiatrist who made an examination of appellant had been present to testify, or her deposition had been taken and filed, appellant's position might have some basis. Counsel should not impose upon a court his personal views or ask a court to accept his vague hearsay representations about his client's mental condition requiring expert testimony. The motion was filed on July 8, 1982. The case was tried beginning on September 20, 1982. While motions for rehearing were made, no supporting material was presented; no medical report and no affidavit of the psychiatrist as to mental condition were ever filed.[2] Appellant had plenty of opportunity to gather such information. In such matters, a court is not required to rely alone upon the hazy representations of counsel.
Colorado has a statute identical in pertinent part to § 7-11-304(c), supra. In Garza v. People, 200 Colo. 62, 612 P.2d 85 (1980), the court held that ultimately the question of good cause is one addressed to the sound discretion of the trial judge and absent a clear abuse of discretion, his ruling will not be disturbed on appeal. In the case now before this court, the record shows no abuse of discretion.
Section 7-11-302, W.S. 1977, covers a lack of capacity, "as a result of mental illness or deficiency" to be tried, sentenced or punished if an accused is unable to comprehend his position, understand the proceedings against him, conduct his defense rationally and cooperate with his counsel. This question may be raised at any stage, even by the court on its own motion, but again there must be "reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed." Section 7-11-303(a), W.S. 1977. I place the same *1229 standard on resolving the issue. There must be more than a lawyer's assertions to justify an inference that appellant was not competent to stand trial. State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979). It is within the sound discretion of the trial judge and a court should not disturb his ruling in the absence of a clear abuse of that discretion.
The trial judge simply had no reliable information before him that the appellant was suffering from the required disability. The reluctance of counsel to present qualified evidence and what even appears to be flimsy excuses why the psychiatrist was unavailable were not helpful. As indicated, a medical report or affidavit of the psychiatrist would have helped the trial judge. He had nothing upon which to base a ruling sustaining the motion. A further reason for doubting the substance of appellant's position is that on the trial date, in preliminary matters, appellant's counsel advised the court that "on behalf of the defendant we would enter a plea of guilty to manslaughter in this particular case without any conditions of any nature being attached to that plea." If the appellant was incapable of standing trial, he was incapable of pleading guilty to a lesser offense. He cannot blow hot and cold in the same breath.
II
Appellant asserts that the evidence will not support second-degree murder. I would hold that it is more than sufficient. It would even support first-degree murder in that there was premeditation. When reviewing for sufficiency of the evidence in a criminal case, various standards have been routinely applied by this court. The evidence favoring the prevailing party is accepted as true and the evidence of the appellant in conflict therewith is entirely left out of consideration. Browder v. State, Wyo., 639 P.2d 889 (1982). The State is given the benefit of those inferences which may be fairly and reasonably drawn from the evidence. Tillett v. State, Wyo., 637 P.2d 261 (1981). In Brown v. State, Wyo., 661 P.2d 1024 (1983), it was held in quoting from a wealth of authority that it is not whether the evidence establishes guilt beyond a reasonable doubt for this court but whether it is sufficient to form the essential basis of guilt beyond a reasonable doubt by the jury when viewed in the light most favorable to the State.
In second-degree murder the essential elements which must be proved by the State beyond a reasonable doubt are that the killing, without premeditation, of a human being was done by the accused both purposely and maliciously. Section 6-4-104, supra note 1. The jury had before it all the evidence it needed to reach a verdict of guilt beyond a reasonable doubt.
The testimony of the State was that appellant threatened to kill Welsh; appellant in his direct testimony declared that he had threatened to kill Welsh. On cross-examination appellant testified that he always carried a loaded gun in his pickup, as well as several other hand guns and rifles. He considered himself a safe handler of firearms. The firearms examiner from the State Crime Laboratory testified that the double action hand gun used to kill Welsh was a .38 caliber revolver completely functional having no defects, with a trigger pull of ten pounds if the hammer is down and three and one-half pounds if cocked (hammer back). It was not prone to accidental discharge but would require that the trigger be pulled to effect firing. From the foregoing, a reasonable jury inference would be that the killing was done on purpose and with malice.
Further, as to malice, the evidence discloses that on the day of the homicide, appellant called his lover at the apartment of the victim's brother where the victim was staying. The conversation was not favorable to his continued relationship with her. Appellant, according to his own testimony, threw down the telephone. When he picked it up to resume the conversation, he twice threatened Welsh's life, and said he was coming to the apartment with a gun and would use it.
*1230 Appellant's acts at the time of the murder permit an overwhelming inference of malice for the jury. His first action upon encountering Welsh's brother's apartment was utterance of a provocative epithet to the victim, followed by a violent physical assault, knocking the victim to the floor. Finally, appellant's behavior at the time of the shooting itself allows a climatical inference of malice. His firearm held in his right hand followed the fall from the assault. There was a deliberate pointing of the revolver at Welsh as it was discharged. There could be no better evidence of malice than this accumulation of acts manifesting an inference of malice by rational jurors beyond a reasonable doubt.
III
The trial judge refused to give appellant's offered Instructions A, B, C and D. I will treat them in that order.
Offered Instruction No. A read: "If two conclusions can reasonably be drawn from the evidence, one of innocence, and one of guilt, the jury should adopt the one of innocence." The appellant cites Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942).
This court has specifically rejected and disapproved the use of such instruction in Cullin v. State, Wyo., 565 P.2d 445, 453 (1977), where it was held:
"* * * That instruction is included in principle in the court's frequent charge to the jury that the defendant must be proven `guilty beyond a reasonable doubt.' This court has held that `reasonable doubt' needs no definition because it has a common meaning. Cosco v. State, Wyo. 1974, 521 P.2d 1345. The offered instruction is therefore included in other instructions. We disapprove of any use of the offered instruction."
No error that I can see.
Offered and refused Instruction No. B was:
"If two conclusions can reasonably be drawn from the evidence, guilty of one offense, and guilty of a lesser, included offense, the jury should find the defendant guilty of the lesser, included offense."
The trial judge gave an instruction which authorized the jury to find the appellant guilty of a lesser-included offense:
"If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt.
"The offense of murder in the first degree, with which the defendant is charged, includes the lesser offense of murder in the second degree and also includes the lesser offense of manslaughter."
This is WPJIC § 1.301. The jury was instructed as to the elements of first-degree murder, second-degree murder, and manslaughter, both voluntary and involuntary.
In Evanson v. State, Wyo., 546 P.2d 412, 416 (1976), this court pointed out that for a lesser offense to be "`necessarily included'"[3] in the offense charged, it must be such that the greater offense cannot be committed without committing the lesser. When first-degree murder as here is charged, there are lesser-included offenses in that the elements overlap. That was explained in State v. Selig, Wyo., 635 P.2d 786, 790-791 (1981):
"The elements of the lesser offense of manslaughter are identical to part of the elements of murder in the second degree, and to part of those of murder in the first degree. All three crimes contain the element of killing of a human being. The elements of the lesser offense of murder in the second degree are identical to part of the elements of murder in the first degree. Both contain the elements of the killing of a human being with malice and *1231 purpose. [Citations.]" (Footnotes omitted.)
The effect of appellant's offered instruction would have been, then, to direct a verdict of manslaughter and remove from the jury its function of determining the offense, if any, committed by the appellant. The facts in this case are subject to three conclusions which can be drawn: first-degree murder; second-degree murder; and manslaughter. The jury must not be deprived of performing its duty. The trial judge was correct in refusing the instruction.
No error appears to me.
Appellant's offered Instruction No. C was:
"The killing of a human being by accident, misadventure or misfortune, by one exercising due care, and in the performance of a lawful act, and without harmful intent, is not a criminal act if all such facts concur."
This offered instruction is WPJIC § 5.101. The use note and comment demonstrate the impropriety of that instruction in this case:
"* * * `The taking of human life by accident, misadventure, or misfortune, while in the performance of a lawful act, exercising due care, and without harmful intent, is excusable; but all such facts must concur [in order for the act not to be criminal], and the absence of any one of them will involve guilt. The homicide must have been committed while the accused was engaged in doing a lawful act, and by lawful means, with ordinary and reasonable care, and without any unlawful or harmful intent. * * *'
"* * * `Where the theory of the defendant is that the killing or assault was the result of accident or misfortune, and was unintentional, and such theory finds support in the evidence, it is the duty of the court to instruct fully and clearly as to the law relating to accident or misfortune. Such an instruction is, however, unnecessary and properly refused in the absence of evidence tending to show accident or misfortune.'" Eagan v. State, supra, 128 P.2d at 222-223.
"* * * The accidental killing of a human being by another is not a defense, unless caused in the doing of some lawful act. [Citations.]" Hollywood v. State, 19 Wyo. 493, 120 P. 471, 478 (1912).
The appellant in this case was doing nothing that was lawful. The evidence emphatically discloses that he threatened, assaulted and shot his victim, without provocation. A defendant has a right to an instruction upon the theory of his case only if there is competent evidence to sustain it. Jackson v. State, Wyo., 624 P.2d 751, cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981), and cases there cited.
I see no error.
Appellant's offered Instruction No. D read:
"`Heat of passion' means such passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar circumstances as those in question which would cause him to act rashly, without reflection and deliberation, and from passion rather than from judgment."
This is WPJIC § 7.509. Instruction No. 22 given by the trial judge added the emphasized sentence:
"`Heat of passion' means such passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar circumstances as those in question which would cause him to act rashly, without reflection and deliberation, and from passion rather than from judgment. Such passion must have been aroused by provocation of the Defendant by the person who was killed." (Emphasis added.)
Appellant contends that it makes no difference how heat of passion is aroused as long as it is present. He further asserts that it was Dianne Welsh rather than John Welsh who aroused his passion through her provocation and the victim was only the innocent beneficiary of that provocation. Appellant cites no authority for his position.
Appellant's position is not sound. The general rule is that in order to reduce murder to manslaughter, the victim must have *1232 been the source of the defendant's provocation generating heat of passion. State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979); State v. Fowler, Iowa, 268 N.W.2d 220 (1978), cert. denied 439 U.S. 1072, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979); Tripp v. State, 36 Md. App. 459, 374 A.2d 384 (1977); People v. Wax, 75 Ill. App.2d 163, 220 N.E.2d 600 (1966), cert. denied 387 U.S. 930, 87 S.Ct. 2051, 18 L.Ed.2d 991; State v. Connor, Mo., 252 S.W. 713 (1923); 40 C.J.S. Homicide § 53; 40 Am.Jur.2d, Homicide, § 57. There is no Wyoming Pattern Jury Instruction, Criminal, covering this principle.
No error, in my view.
Such holding would also dispose of appellant's objection to the court's Instruction No. 22 raised in his fifth issue before this court.
IV
It is in this part that the majority and I part company. As to appellant's fourth issue, I will first consider appellant's claim of error in the court's giving Instruction No. 10: "You are instructed that the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice."
Appellant objects that the instruction:
"* * * places the defendant in a position where he has the burden of proving that he is not guilty of malice. * * * [A] defendant in a criminal case, especially a murder case, has no duty to prove anything, much less to prove that he is not guilty of malice."
This objection was sufficient to preserve the question for appellate consideration.
The State has called to our attention Sandstrom v. Montana, supra, which raises the real issue as to Instruction No. 10 for this court to decide. Do the facts and the trial judge's instructions in the case before us fall within the proscriptions of Sandstrom?
The defendant in Sandstrom was charged with "deliberate homicide" in that he "purposely or knowingly" caused the victim's death. The defendant at trial took the position that though he killed the victim, he did not do so "purposely or knowingly." The trial judge instructed the jury that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" over the objection that such an instruction had the effect of shifting the burden of proof on the issue of purpose and knowledge. The Montana Supreme Court held that due process standards were not violated by the instruction.
The United States Supreme Court held that because the jury may have interpreted the challenged instruction as conclusive or shifting the burden of persuasion, it violated the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that the instruction was therefore unconstitutional.
The presence of malice is a required element of first and second-degree murder in Wyoming. Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981).[4] The trial judge's instruction on the presumption of malice raised as indicated above thus arguably calls for an analysis as governed by Sandstrom v. Montana, supra, the United States Supreme Court's most recent authoritative pronouncement on the validity of evidentiary presumptions in criminal cases. In analyzing *1233 the totality of the instructions, we find no constitutional error in the trial court's presumption instruction.
As Sandstrom mandates:
"The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes. See Ulster County Court v. Allen, ante, at 157-163 [442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)]. That determination requires careful attention to the words actually spoken to the jury, see ante, at 157-159, n. 16, for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom, supra, 442 U.S. at 514, 99 S.Ct. at 2454.
The Court in Sandstrom then proceeded to show that even if the presumption as given in the instruction were truly "permissive,"[5] which it found the Sandstrom presumption of intent from an act's natural consequences not to be, the presumption must be disallowed on Winship grounds since a reasonable juror "could easily have viewed such an instruction as mandatory." Sandstrom, supra, 442 U.S. at 515, 99 S.Ct. at 2454. I would sustain the presumption instruction since I can and will demonstrate that the presumption as articulated by the court's instructions is truly permissive, and also that a reasonable juror could not have construed such a presumption as mandatory.
A genuinely permissive presumption "could not conceivably have run afoul of the constitutional decisions cited by the Court in its opinion" (Sandstrom, supra, 442 U.S. at 527, 99 S.Ct. at 2461, Rehnquist, Justice, concurring) for the reasons indicated in County Court of Ulster County, New York v. Allen, supra note 5. To manifest the genuinely permissive character of the malice presumption instruction, we must examine the "words actually spoken to the jury" as Sandstrom requires.
The court's instructions, considered in relation to the constitutional propriety of the malice presumption, may be viewed in three contexts, i.e., jurors' duties and responsibilities, defendants' rights, and evidentiary requirements for the establishment of a fact or element of the crime charged. These contexts, taken together as they must be[6], clearly demonstrate the permissive nature of the malice presumption. In the first context, jurors' duties and responsibilities are included in the court's instructions. Here the court instructed the jury on its nature as exclusive trier of fact; such facts *1234 to be determined solely from the evidence presented.[7] Furthermore, the court closely admonished the jury to consider each of its instructions in the light of all the others; no instruction was to receive undue emphasis derived from a single sentence or individual point.[8] The court also instructed unmistakably on the nature of the defendant's constitutional rights to due process in the fact-finding process. Instructions were given both on the presumption of innocence and, to emphasize the prosecution's responsibility to prove beyond a reasonable doubt each and every element of the offense charged, on the fact that defendant is not required to prove his innocence.[9] Finally, the court's instructions made amply manifest the rigorous standard of proof beyond a reasonable doubt required for the establishment of every fact and element of the crime charged. The jurors were repeatedly informed that every element of the principal crime charged, first-degree murder, as well as of every possible lesser-included offense, had to be found by them beyond a reasonable doubt, and further that if any element were not so found by them, that element, and necessarily the crime thereby implicated, could not and must not be established.[10] Any reasonable juror who had received these instructions was thus clearly aware of his duty to find all the required elements of the crimes charged beyond a reasonable doubt, and his duty to acquit if he could not do so from and only from the prosecution's evidentiary case in chief.[11]
Pursuing the Sandstrom analysis along another line of development, I pass to a *1235 consideration of the conceptual assumptions underlying the use of the malice presumption as indicated by the Wyoming Rules of Evidence, particularly Rules 301 and 303.[12] The differences between our rules and the Montana rules, the United States Supreme Court characterized as either creating a mandatory presumption or tending to lead a reasonable juror to believe a mandatory presumption had been intended or created,[13] are striking and significant. First to be noticed is the fact that the Montana rules relating to presumptions are intended to apply in undifferentiated fashion to both civil and criminal proceedings. This is not the case in Wyoming; Wyoming Rule of Evidence 301 gives the civil (noncriminal) rule, establishing that only in such noncriminal actions shall a presumption have the effect of shifting the burden of going forward to the opponent of the presumption, while Wyoming Rule of Evidence 303 mandates a different treatment for presumptions employed in criminal trials. Second, in stark contrast to Montana's Rule 301(a), establishing an apparently universal rule of mandatory presumptions in Montana jurisprudence, nowhere do the Wyoming Rules of Evidence characterize the nature of presumptions as mandatory, or other than permissive.[14] And finally, the Wyoming rules specifically provide the special constitutionally required safeguards necessary where presumptions of common-law descent are applied in the criminal context. Wyoming Rule of Evidence 303 provides in terms that the court, when sending a question of fact supported by a presumption to the jury in a criminal trial, shall instruct the jury that they may rely on the presumption, but are not required to do so, and furthermore that, if reliance is had on the presumption, the fact must still be found beyond a reasonable doubt. Thus, the constitutional perils encountered by a Montana defendant are effectively eliminated by the Wyoming practice, and a Winship error is avoided.[15] Thus, the permissive character of the malice presumption as contained in all the court's instructions is well and fairly established. All instructions must be read as one instruction. Instruction No. 10 was not in the same conclusory language as the instruction considered in Sandstrom.
Of course, the Sandstrom court was not to be persuaded by a theoretically permissive presumption. The evil to be avoided was the jury's possible understanding of the presumption as either mandatory ("conclusive"), *1236 or resulting in a burden shift to defendant on the issue of intent. Sandstrom v. Montana, supra, 442 U.S. at 518-525, 99 S.Ct. at 2456-2459. As indicated, I find no possibility that a reasonable juror, receiving the court's instructions on the malice presumption in this case, could reach such conclusions. First, on the question of a reasonable juror's possible understanding of the presumption as mandatory or conclusive, in addition to the indications of permissiveness given by the court's instructions, there is the wholly persuasive fact that the court also carefully defined malice for the jury.[16] The obvious and natural interpretation of this event is that the fact finder would need such a definition to find the fact by itself. No reasonable juror could possibly understand the definition to be surplusage in light of the court's other instructions on his duties and responsibilities. A reasonable juror could reasonably receive such an instructional definition only on the assumption that he was intended to use the definition to find the fact so defined. Thus, the mere possibility that the jury would consider the presumption mandatory is diminished to the vanishing point. Likewise, the anticipatory fear of the Sandstrom court that this jury might understand the malice presumption as causing a burden shift to defendant on the issue of malice is obviated by the court's clear instruction that the defendant cannot be made to prove his own innocence (see note 9), and by the understanding a reasonable juror would have of the distinctions created by Wyoming Rules of Evidence 301 and 303 that control this case (see note 12). Where the language of instructions in their entirety is clearly permissive, and the underlying evidentiary statutes establish as a matter of law that no burden shift may occur as a result of the employment of presumptions in criminal cases, there need be no anxiety of a reasonable juror making such a mistake. Unlike in Sandstrom, no burden of proof or persuasion was shifted to the appellant. I do not take, nor did the trial judge take, a position like that of the Supreme Court of Montana that allocation of "`some burden of proof'" (emphasis in original) to a defendant is permissible. Sandstrom v. Montana, supra, 442 U.S. at 513, 99 S.Ct. at 2454.
I thus conclude that no constitutional error occurred in this case as a result of the court's instruction to the jury on the presumption of malice arising from the use of a deadly weapon in a deadly or dangerous manner. As indicated throughout this dissenting opinion, I reach this conclusion inasmuch as the twin Sandstrom dangers of a statutorily conclusive presumption and the possibility of a mistaken jury on the questions, either of the nature of the presumption as conclusive or permissive, or the possibility of the presumption causing a burden shift to defendant, are entirely absent from this case.
In Sandstrom, the question of harmless error was not reached because the Montana court had not considered it. I would make no holding in that regard because I find no error. However, I have explored the subject and pass along the discoveries. Even if there was error, it was harmless and thus not ground for reversal. Rule 7.04, W.R.A.P.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967), reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241; and Hays v. State, Wyo., 522 P.2d 1004 (1974), inform our judgment that not all trial errors of constitutional magnitude require reversal. Chapman, in establishing the federal rule for harmless error, mandates a reviewing appellate court to inquire whether it may say "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." It is not what the appellate court may think but whether a rational juror could conclude guilt beyond a reasonable doubt.
*1237 I note the recent United States Supreme Court holding in Connecticut v. Johnson, ___ U.S. ___, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), in which certiorari was granted to answer the question as left open by Sandstrom, as to whether such instructional error operates per se to deprive a defendant of due process. The plurality would hold that a conclusive presumption is never harmless.[17] It is a plurality opinion of the most indecisive sort which, while entitled to our highest respect, does not compel any conclusion. It was a four-four split. Stevens, Justice, only concurred in the judgment. The dissent, entitled to the same respect, would have held that "[b]ecause the presumption does not remove the issue * * from the jury's consideration, it does not preclude a reviewing court from determining whether the error was `harmless beyond a reasonable doubt'" and "[w]hile a jury may rely on the presumption instruction as a means of finding [the required element of the charged crime], there may be many cases in which the facts and circumstances so conclusively establish this element that the instruction is wholly superfluous." (Emphasis added.) An equally divided court results in an affirmance and has no precedential value. Ringsby v. Dixon, Wyo., 496 P.2d 179 (1972); Town of Lovell v. Menhall, Wyo., 386 P.2d 109 (1963). The question was thus not decided in that the Connecticut Supreme Court never discussed harmless error. State v. Johnson, Conn., 440 A.2d 858 (1981). The plurality opinion in Connecticut is at variance with the overwhelming proportion of cases deciding this issue. See, e.g., United States v. Winter, 663 F.2d 1120 (1st Cir.1981); Healy v. Maggio, 706 F.2d 698 (5th Cir.1983); Engle v. Koehler, 707 F.2d 241 (6th Cir.1983); Conway v. Anderson, 698 F.2d 282 (6th Cir.1983); Johnson v. Balkcom, 695 F.2d 1320 (11th Cir.1983); Rock v. Coombe, 694 F.2d 908 (2nd Cir.1982); Phillips v. Rose, 690 F.2d 79 (6th Cir.1982); Glenn v. Dallman, 686 F.2d 418 (6th Cir.1982); Tweety v. Mitchell, 682 F.2d 461 (4th Cir.1982); Mancuso v. Harris, 677 F.2d 206 (2nd Cir.1982); Mason v. Balkcom, 669 F.2d 222 (5th Cir.1982); Krzeminski v. Perini, 614 F.2d 121 (6th Cir.1980); Hammontree v. Phelps, 605 F.2d 1371 (5th Cir.1979); People v. Mitchell, 58 N.Y.2d 368, 461 N.Y.S.2d 267, 448 N.E.2d 121 (1983); People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1983); People v. Roder, 33 Cal.3d 491, 189 Cal. Rptr. 501, 658 P.2d 1302 (1983); State v. McCullum, 98 Wash.2d 484, 656 P.2d 1064 (1983); State v. Forrester, 134 Ariz. 444, 657 P.2d 432 (1982); Johnson v. State, 249 Ga. 621, 292 S.E.2d 696 (1982); State v. Hardy, Mont., 604 P.2d 792 (1980); State v. Heads, La., 385 So.2d 230 (1980).
The instruction on presumption was in all likelihood superfluous because of the overwhelming evidence of malice other than use of the firearm, which I have heretofore set out in some detail but summarize for this part of the dissent. On the day of the homicide, appellant telephoned his lover at an apartment where his victim was staying. He became angry when she professed her plan to remain with the victim. Appellant then threw down the telephone, picked it up, twice threatened Welsh's life and said he was coming to kill him. At the time of the murder, he called Welsh a "`zit face,'" followed by a violent assault knocking Welsh to the floor, deliberately pointed the handgun at Welsh and fired. What more in Heaven's name must we demand to prove malice and convict of murder!
As a part of his fourth issue, appellant challenges the court's Instruction No. 21 on the ground that "he cannot be found `guilty' of either Murder in the First Degree or Murder in the Second Degree, regardless of what his intent or mental condition prior to the homicide was." He argues that the words in the instruction "intent to kill" force the jury to find there was a previous intent to kill and that it was "abandoned before the homicidal act was committed."
Instruction No. 21:
*1238 "The sudden heat of passion on the part of the defendant will not reduce the crime from murder to manslaughter where the defendant entertained a previous intent to kill, unless it appears that such intent was abandoned before the homicidal act was committed."
That instruction came verbatim from WPJIC § 7.506. It is a correct statement of the law with respect to manslaughter when charged as a lesser-included offense to murder. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 566 (1956). Section 6-4-107, W.S. 1977, defines manslaughter:
"Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty (20) years." (Emphasis added.)
Under the facts of this case the heat of passion was not a sudden flareup caused by the provocation of his victim when encountered face to face. The evidence indicates that his intent to kill was formed when he telephoned the Welsh apartment and at that time announced his intent to kill, armed himself, traveled to the victim's location and proceeded to carry out his threat. There is no evidence that at any time his intent was abandoned. A "sudden heat of passion" is inconsistent with an already formed intent.
The rule is of long standing and was announced by the Supreme Court of the United States in Collins v. United States, 150 U.S. 62, 14 S.Ct. 9, 37 L.Ed. 998 (1893), where it was articulated in a little different fashion to say that if the defendant in a moment of passion, and without any previous preparation, did the shooting, the offense would be manslaughter and not murder; but, if he prepared himself to kill, and had a previous purpose to do so, then the mere fact of passion would not reduce the crime below manslaughter.
It was a jury decision as to whether there was a previous intent to kill, whether there was a sudden heat of passion, and whether there had been an abandonment of a previously formed intent to kill. No error here that I can see.
I have in Part III disposed of appellant's issue with respect to Instruction No. 22 and would have found no error.
V
Finally, appellant protests as error the court's giving of a supplemental instruction in response to a question by the jury after it had returned:
"The Jury having submitted to the Court the following question: `Does the presence of malice preclude a manslaughter conviction?'; the Court instructs the Jury as follows: `Not necessarily', but a finding of malice, where the other elements for voluntary manslaughter have also been found, would preclude a manslaughter conviction."
Before responding to the jury's question, the trial judge conferred in chambers with all counsel. At that time, he advised counsel of his proposed response. Appellant's counsel objected on the ground that the court's proposal was "an automatic direction by the Court for the jury to find the defendant guilty of second degree murder, at least." Appellant also thought there was some relationship between this instruction and Instruction No. 10 (see Part IV) in that it compounded what appellant conceived to be error in Instruction No. 10. He further suggested that the court's response should only refer the jury to the instructions already given and state them to be adequate for a full consideration of the case.
In Hoskins v. State, Wyo., 552 P.2d 342 (1976), this court approved the rule that in reviewing the propriety of a supplemental instruction given the jury, the instructions have to be considered as a whole and the supplemental instruction examined in the light of the other instructions previously given.
Section 6-4-107, supra, defining manslaughter, quoted in an instruction, specifically *1239 states, "[w]hoever unlawfully kills any human being without malice * * * is guilty of manslaughter." (Emphasis added.) It is obvious then that even though the other elements of manslaughter may be present, if the killing was with malice, then it is not manslaughter but murder. The absence of malice is essential to the crime of manslaughter. See 40 C.J.S. Homicide § 45.
I am puzzled (a euphemism) by the majority's offhand statement in this regard that the
"* * * logical conclusion is that they [the jury] felt compelled to presume malice from the use of the gun because of the instructions in the case. It is then reasonable to conclude that if the jury had known that the presumption of malice was not mandatory, it may not have convicted appellant of second-degree murder. * * *"
That is a speculative sophism.
The real reason for the question lies in conflicting instructions as originally given to the jury. The trial judge first gave WPJIC § 7.501:
"Pertinent portions of the Wyoming statutes provide as follows:
"`Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter ...'" (Emphasis added.)
He followed that with WPJIC § 7.502:
"The necessary elements of voluntary manslaughter are:
"1. The crime occurred within the county of ____ on or about the date of ____; and
"2. The defendant killed a human being [words `without malice' missing!]; and
"3. The defendant acted voluntarily
"4. Upon a sudden heat of passion.
"If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
"If, on the other hand, you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty." (Bracketed material and emphasis added.)
Note that WPJIC § 7.502 in the second element omits the words of the statute, "without malice." The trial judge did no more in his corrective language than straighten out a pattern instruction that is incomplete in part. It bears no relation whatsoever as to any presumption.
I would have affirmed.
NOTES
[*] Retired June 13, 1983, but continued to participate in the decision of the court in this case pursuant to order of the court entered June 13, 1983.
[1] We commend the state for bringing this case to our attention.
[1] Appellant was found guilty of second-degree murder as defined in § 6-4-104, W.S. 1977:
"Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life."
He was sentenced to serve not less than 20 years nor more than 20 years and one month in the State Penitentiary.
[2] I note, however, that in the county court transcript, filed with the district court when appellant was bound over, there appears a letter to appellant's counsel from the same psychiatrist whom counsel relied upon which states, "[m]ental status examination revealed no evidence of major mental disorder including thought disorder, auditory or visual hallucinations, paranoid ideation, delusions or uncontrollable behavior." It was also noted appellant was depressed by events that had transpired.
[3] Rule 32(c), W.R.Cr.P., a counterpart of Rule 31(c), F.R.Cr.P., authorizes the jury consideration of lesser-included offenses: "The defendant may be found guilty of an offense necessarily included in the offense charged. * * *"
[4] Instruction No. 7, in pertinent part, given in this case:
"The necessary elements of the crime of murder in the first degree are:
"1. The crime occurred within the county of Natrona on or about the date of February, [sic] 20, 1982; and
"2. The defendant killed a human being; and
"3. The defendant acted purposely; and
"4. With premeditation; and
"5. With malice."
Instruction No. 16, in pertinent part, given in this case:
"The necessary elements of the crime of murder in the second degree are:
"1. The crime occurred within the county of Natrona on or about the date of February 20, 1982; and
"2. The defendant killed a human being; and
"3. The defendant acted purposely; and
"4. With malice."
[5] The definition of permissive presumptions in County Court of Ulster County, New York v. Allen, 442 U.S. 140, 157-158, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979), is instructive here:
"The most common evidentiary device is the entirely permissive inference or presumption, which allows but does not require the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e.g., Barnes v. United States, supra, [412 U.S. [837] at] 840 n. 3 [93 S.Ct. 2357, 2360 n. 3, 37 L.Ed.2d 380]. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e.g., Turner v. United States, 396 U.S. 398, 402 n. 2 [90 S.Ct. 642, 645 n. 2, 24 L.Ed.2d 610]. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. E.g., Barnes v. United States, supra, [412 U.S.,] at 845 [93 S.Ct. at 2362]; Turner v. United States, supra, [396 U.S.,] at 419-424 [90 S.Ct. at 653-656]. See also United States v. Gainey, 380 U.S. 63, 67-68, 69-70 [85 S.Ct. 754, 757-758, 758-759, 13 L.Ed.2d 658]. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the `beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination."
[6] "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S.Ct. 396 [400], 38 L.Ed.2d 368 (1973). Accord, Scheikofsky v. State, supra, 636 P.2d 1107; Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Flanders v. State, 24 Wyo. 81, 156 P. 1121 (1916); Roberts v. State, 11 Wyo. 66, 70 P. 803 (1902).
[7] Instruction No. 1, in pertinent part:
"You are the exclusive triers of the facts and of the effect and value of the evidence, but you must determine the facts from the evidence produced here in Court. * * *
* * * * * *
"In determining any of the questions before you in this case, you should be governed solely by the evidence. * * *"
[8] Instruction No. 1, in pertinent part:
"* * * For that reason, you are not to single out any certain sentence, or any individual point but are to regard all the instructions as a whole, and are to regard each in the light of all the others. * * *"
[9] Instruction No. 5, in pertinent part:
"The law places the burden upon the state to prove the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced beyond a reasonable doubt and from all of the evidence in the case that he is guilty."
[10] Instruction No. 5 included:
"* * * The test you must use is this: If you have a reasonable doubt as to the proof of any of the elements to be proved, you should find the defendant not guilty. If you have no reasonable doubt as to the proof of any of them, you should find the defendant guilty."
Instruction No. 7 (instruction on first-degree murder) included:
"If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
Instruction No. 16 (instruction on second-degree murder) included:
"If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
Instruction No. 18 (instruction on voluntary manslaughter) included:
"If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
Instruction No. 19 (instruction on involuntary manslaughter) included:
"If you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
[11] The sufficiency of these instructions to indicate a purely permissive presumption should be properly compared with those found adequate in County Court of Ulster County, New York v. Allen, supra, 442 U.S. at 161-163, 99 S.Ct. at 2227, to guarantee a purely permissive presumption. The similarities are striking. While the instructions in County Court of Ulster County, New York v. Allen, supra, used the words "may infer and draw a conclusion" from the presumption, it is my position that all the instructions in the case before us were permissive. To allow a permissive use of a presumption need not be expressed in a single word, as enunciated in all the language of County Court of Ulster County, New York v. Allen, supra, which went through the same exercise as I do in looking at all the instructions.
[12] Rule 301, Wyoming Rules of Evidence, in pertinent part, provides:
"(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence."
Rule 303, Wyoming Rules of Evidence, in pertinent part, provides:
"(a) Scope. Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.
* * * * * *
"(c) Instructing the jury. Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt."
[13] Sandstrom v. Montana, supra, 442 U.S. at 516-517, 99 S.Ct. at 2455.
[14] In fact, no definition of presumptions is given by the Wyoming Rules of Evidence except the "operational" definition given in Rule 301 requiring a shift in the burden of production in civil actions. It may be noted that the effect of this policy decision not to define presumptions is to create maximum discretion in the interpretation of the effect of presumptions in the fact finder.
[15] I cite the Wyoming practice similarly in intent to the United States Supreme Court's citation of the Montana rules in Sandstrom, i.e., not to demonstrate their defectiveness or exemplary quality, but as evidence of their probable effect on a reasonable juror. In passing, I note my confidence that the trial judge fully complied with the requirements of Wyoming Rule of Evidence 303 when the instructions are considered as a whole.
[16] Instruction No. 9 provides:
"`With malice' means the commission of a wrongful act done intentionally without legal justification or excuse. The term `malice' conveys the meaning of hatred, ill will, or hostility toward another and implies a wicked condition of mind."
[17] The court in Connecticut v. Johnson, supra, does not so hold in terms; it merely affirms the state court decision.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 2444-01
CHARLES W. MIZELL, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
Johnson, J., filed a dissenting opinion.
O P I N I O N
In Texas, a Class A misdemeanor is punishable by "a fine not to exceed $4000, confinement in jail
for a term not to exceed one year, or both such fine and confinement." (1) No minimum fine or minimum term
of confinement is specified.
The jury chose to convict appellant of official oppression, but also chose to assess as punishment
neither the fine nor the term of confinement available to it under § 12.21. We cannot know why. Perhaps,
the jury saw the mere fact of conviction of official oppression as sufficient punishment. Perhaps it was
confused. Perhaps it saw a $2000 fine as sufficient for both charged offenses. Perhaps it decided that the
state had proven its allegations beyond a reasonable doubt, but that the charged behavior was too minor
to concern it; lex non curat de minimis.
Regardless of its reasons, the jury has chosen a sentence which falls within the specified limits. A
fine of $0 does not exceed $4000, nor does no jail time exceed one year confinement. The statute speaks
only in terms of maximums; unlike other statutes, such as those governing felonies and driving while
intoxicated, there are no specified minimums. If a jury may assess a fine and no confinement, and if it may
assess confinement and no fine then if, as here, a jury assesses no fine and no jail time, both possible
components of a permissible sentence are still within the limits prescribed by the Legislature. How, then,
is such a sentence illegal or unauthorized?
I submit that, while we might wish for a jury to assess punishment in terms of time or money, the
statute does not require it. I respectfully dissent.
Johnson, J.
Filed: November 5, 2003
En banc
Publish
1. Tex. Penal Code § 12.21.
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245 F.2d 271
Odell KNOSHAUG and Merrill Knoshaug, Appellants,v.Harold Arnold POLLMAN, Appellee.
No. 15724.
United States Court of Appeals Eighth Circuit.
June 7, 1957.
Joseph P. Stevens, Minot, N. D., Arthur N. Ohnstad, Fargo, N. D., and Leonell W. Fraase, Tioga, N. D., filed brief for appellants.
Clyde Duffy, Devils Lake, N. D. (Harold A. Pollman and Manuel J. Hoppenstein, Dallas, Tex., and Arthur Stokes, Grand Forks, N. D., were with him on the brief), for appellee.
Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
VOGEL, Circuit Judge.
1
Plaintiffs-appellants brought this action to set aside and have declared null and void a certain deed to 8 mineral acres executed by them and given to the defendant-appellee as a contingent fee for legal services. Motion for summary judgment by the appellee was granted. This appeal followed.
2
Suit was originally commenced in the State District Court of North Dakota. Diversity of citizenship and the requisite amount prompted removal to the federal court.
3
From the pleadings and the depositions of the two appellants, the following facts, which formed the basis for the trial court's granting of appellee's motion for summary judgment, appear in the record without dispute: In August, 1953, the appellants, two brothers, who owned 280 acres of land in the Tioga area, sought the advice and assistance of the appellee, a practicing attorney, in securing the drilling of an oil well on one 40-acre tract owned by them and under lease to Amerada Petroleum Company. Their land was apparently being drained by a neighboring well and they desired to secure an "off-set" well. An agreement was entered into between the parties whereby a contingent fee of 4 mineral acres out of the 40-acre tract was to be given appellee for his services. A mineral deed for 4 mineral acres running from the appellants to the appellee was executed and delivered with the understanding that the deed was not to be effective until the desired well was obtained. Thereupon, the appellee began negotiations with Amerada, which negotiations continued until the beginning of October, 1953. Appellee was unsuccessful in getting Amerada to agree to the drilling of a well as first proposed. Amerada insisted on unitization with a neighboring tract as a condition to drilling. Appellants then suggested a counter proposal providing for the drilling of two wells, one on the 40-acre tract which they agreed to unitize, provided a second well on another tract of 240 acres located some distance from the 40-acre tract was also drilled. The matter of appellee's fee in connection with the second proposition was then discussed and on October 5, 1953, the appellants signed a letter prepared in the appellee's office directed to him, containing the following:
4
"This memorandum will witness our understanding that you may negotiate with Amerada on the basis of Unitizing that 40 acre tract with the Northwest Quarter of the Southwest Quarter of Section Thirty in Township 158 North Range 94 West only upon receiving a commitment from Amerada to commence in a reasonably short time (about 60 days) the drilling of an additional well on our tract of land in Section 32, Township 158 North Range 94 West.
5
"Further, in view of the fact that your compensation will be in acreage over the unitized tract, our conveyance to you is to be 8/40ths of the SW¼ SW¼ of Section 30, Township 158 North Range 94 West, (Intending eight mineral acres)."
6
At the same time, October 5, 1953, the appellants signed another deed conveying to the appellee 8 mineral acres out of the 40-acre tract, recordation to be delayed until after Amerada commenced drilling operations. At this meeting the unrecorded 4-acre deed was cancelled and marked void. Two days thereafter, on October 7, 1953, the two appellants returned to the appellee's office, inquired and were informed that the deed they had signed two days prior thereto was for 8 mineral acres. Appellants testified that they were dissatisfied but made no complaint, thinking they were "stuck". In company with the appellee the appellants thereafter had a conference with various officers of Amerada Petroleum Company and entered into a contract with them whereby Amerada agreed to drill the two oil wells proposed by the appellants, one on the 40-acre tract and one on the 240-acre tract. As a result of that contract, Amerada promptly drilled and completed a producing well on the 40-acre tract. Shortly thereafter Amerada drilled and completed the second well on the 240-acre tract, which produced oil in January, 1954. Later appellants received a division order forwarded to them from Stanolind Oil Purchasing Company and noted that it showed 8 mineral acres belonging to the appellee. They nevertheless signed the division order as "correctly" setting forth their interest. They received royalty checks on that basis. About a year later they received a natural gas division order which they did not sign.
7
Prior to the commencement of this action on May 18, 1955, the appellants did not register any complaint with the appellee or with Amerada or Stanolind. In other words, after becoming fully aware of all the facts and that they had executed a mineral deed conveying 8 mineral acres to the appellee as his fee for arranging the drilling of two wells on their property and being dissatisfied therewith, they nevertheless failed to take any action to rescind for approximately 20 months. During that period they received and continued to receive benefits from the employment of the appellee and the two oil wells drilled on their land as a result of his activities. Appellants, by this suit, sought to rescind their contract with the appellee and to have the deed which they executed declared null and void and they allege fraud on the part of the appellee in the procurement of the deed.
8
In granting the appellee's motion for summary judgment (Knoshaug v. Pollman, 148 F.Supp. 16, 22, 23), the District Court stated:
9
"Each of plaintiffs is thirty or more years of age; one is a high school graduate, the other a graduate of the eighth grade; each is a successful farmer, can read and write, and is familiar with terminology in the field of oil and gas; both were present, together, during all conferences and discussions that occurred between them and defendant; they failed to express dissatisfaction with, or complain of the transaction involved and failed to take any formal action to rescind for approximately twenty months after they were fully aware of all the facts; they have reaped, and continue to reap, the benefits of the services of defendant pursuant to a contract of employment which has been, on the part of defendant, fully performed; until the commencement of this action, all of the representations and actions of plaintiffs were consistent with the validity of the conveyance, and wholly inconsistent with an intent to avoid it.
10
"Therefore, * * * in view of the pertinent statutes of North Dakota as interpreted by the Supreme Court of this state, plaintiffs have procrastinated too long; their delay is fatal and they have thereby waived any right they may have had to rescind."
11
The applicable statutes of the State of North Dakota are as follows: North Dakota Revised Code of 1943:
12
"9-0902. Rescission; When Permitted. A party to a contract may rescind the same in the following cases only:
13
"1. If the consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through * * * fraud * * *."
14
"9-0904. Rules Governing Recission. Rescission, when not effected by consent * * * can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules:
15
"1. He must rescind promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability and is aware of his right to rescind; and
16
"2. He must restore to the other party everything of value which he has received from him under the contract or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so."
17
The District Court stated, at page 21 of 148 F.Supp.:
18
"The general rule in North Dakota is that the question whether the rescinding party acted with due promptness is one of law for the Court to decide. Fedorenko v. Rudman, N.D., 71 N.W.2d 332. The diligence or promptness required to rescind upon discovering the facts, under the North Dakota statutes, is the same whether the party attempting to rescind relies upon the grounds of mistake, duress, menace, fraud, or undue influence. Fedorenko v. Rudman, supra, at page 338."
19
In the Fedorenko v. Rudman case, supra, the North Dakota Supreme Court held that a 16-month delay in bringing formal action was a waiver of the right to rescind. Again, in Daniel v. Hamilton, N.D.1953, 61 N.W.2d 281, the same court held under the circumstances there that a delay of 66 days was fatal. In neither of these cases does the North Dakota court attempt to fix absolute time requirements for bringing rescission actions but rather gives due regard to each factual situation. See also Kramer v. K. O. Lee & Son, 1931, 61 N.D. 28, 237 N.W. 166, and Bauer v. National Union Fire Ins. Co., 1924, 51 N.D. 1, 198 N.W. 546, 549.
20
We have, then, this situation: By the appellants' own testimony it is uncontroverted that on October 7, 1953, they were aware of the fact that they had signed a deed for 8 mineral acres, representing a contingent fee for the appellee's services in getting two oil wells drilled on their properties; that while dissatisfied, they thought they were "stuck"; that with this knowledge they, in company with the appellee, negotiated for and entered into a contract with Amerada for the drilling of the two wells; that the two wells were drilled and produced oil; that they thereafter signed a division order from Stanolind Oil Purchasing Company showing appellee as the owner of 8 mineral acres; that they continued to receive and accept royalty checks based upon such division; that after complete knowledge of the facts and being dissatisfied therewith, they nevertheless waited for a period of 20 months before taking any action to set aside or rescind the deed which they claim was procured by fraud. The trial court was correct in holding under these circumstances "that plaintiffs have waived their right (if any) to rescind the deed by failing to promptly and with reasonable diligence exercise the same".
21
In addition to having waived their rights by unreasonable delay, it must be pointed out that the appellants also ratified the contract after admittedly becoming aware of its terms. They continued to use the appellee's services for which they were then aware they had contracted to pay a contingent fee of 8 mineral acres. This alone was sufficient to indicate ratification, but in addition thereto appellants knowingly signed as correct a division order from Stanolind which showed 8 mineral acres belonging to the appellee, and they accepted royalty checks on such divisional basis. Their actions amounted to ratification subsequent to knowledge. See Daniel v. Hamilton, supra, 61 N.W.2d at pages 288 and 289; 12 C.J.S. Cancellation of Instruments § 38, pp. 996, 997. We hold that the trial court's determination that on this record no genuine issue remained in the case and that the appellee was entitled to judgment as a matter of law was eminently correct.
22
Affirmed.
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228 S.C. 34 (1955)
88 S.E.2d 838
DOROTHY BROWN, Respondent,
v.
FRANCES HILL and ONE 1948 PONTIAC, 1952 S.C. LICENSE NO. E-32286, Appellants.
17054
Supreme Court of South Carolina.
August 11, 1955.
*35 Messrs. Leatherwood, Walker, Todd & Mann, of Greenville, and Harold Major, of Anderson, for Appellants.
*36 Messrs. Richard J. Foster and Sol E. Abrams, of Greenville, for Respondent.
August 11, 1955.
LEGGE, Justice.
*37 Respondent brought this action to recover damages for personal injuries resulting from alleged heedlessness and recklessness of appellant, her brother's wife, in the operation of appellant's automobile in which respondent was riding as a guest. On the date of the accident, September 26, 1952, both parties resided in Anderson, South Carolina; and on that evening, about 9:00 p. m., respondent, having accepted appellant's invitation to accompany her to Greenville, South Carolina, was sitting on the front seat of the car, a 1948 Pontiac convertible, which appellant was driving. On the rear seat were appellant's son and daughter, aged thirteen and fourteen respectively, and respondent's four-year-old daughter. The weather was clear and the highway dry. Traveling northward on S.C. Highway No. 81, about three miles from Anderson, the car left the pavement, proceeded for some distance on the right-hand shoulder of the road and on the side of the "fill", struck a tree, and, proceeding further, turned over and came to rest upside down, headed in the direction from which it had come. The car was completely demolished, and respondent sustained a compound fracture of the right femur, appellant three broken ribs, and appellant's daughter a broken arm. Appellant's son and respondent's daughter escaped serious injury. There were no eyewitnesses to the accident other than the occupants of the car.
Corporal Dubose of the State Highway Patrol, who arrived at the scene shortly after the accident, testified that, northbound, the highway at this point curves very sharply to the left; that its paved "black-top" is about twenty feet in width and is flanked on either side by a six-foot grass shoulder; and that it is on a sloping "fill" about three or four feet deep. Tire marks indicated that one or both of the right wheels of appellant's automobile had left the pavement before entering the curve; and there was a "pull mark" on the grass shoulder going around the curve for a distance of some twenty-five or thirty feet, after which the car had crossed a dirt side-road, had struck a tree about twelve *38 feet off to the right of the grass shoulder, and, some sixty or seventy-five feet beyond the tree, had turned over, heading back toward Anderson.
George W. Brown, respondent's husband, testified that he visited the scene two days after the accident and, some three months later, at the request of counsel, revisited the place and stepped off the distance from the point where the car had left the road to the point where it had come to rest, and that it measured seventy-three steps, or about two, hundred nineteen feet.
Respondent testified that she had been talking with appellant, and that as they approached the curve she was looking straight ahead and saw no light indicating the approach of any car from the direction of Greenville; that just before reaching the curve the car jumped and jolted as the right wheels went off the pavement and upon the shoulder, and about then she glanced at the speedometer, which indicated a speed of seventy miles an hour; that up to that moment she had paid no attention to the speed of the car; that she had frequently ridden with appellant and considered her a careful driver; and that she herself had never driven a car.
Appellant testified that just as she "started to enter the curve" she was blinded by the lights of a car coming from the direction of Greenville; that two of the wheels of the approaching car were over on her side of the white center line of the road; that she applied her brakes and pulled to the right; and that she "ran on the shoulder of the road and lost control of the car"; and that her speed when the car left the highway was approximately forty-five miles per hour. Her son testified that she had begun to turn to the left into the curve when he saw the bright lights of an approaching car. He had no idea as to the speed at which appellant was driving. Her daughter's testimony, also, was to the effect that as their car was entering the curve the bright lights of an approaching car shone in her face. *39 This child's testimony as to the direction of the curve and as to the speed of their car was somewhat confused.
Section 46-801 of the 1952 Code, which governs this action, provides that "no person transported by an owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such motor vehicle or its owner or operator for injury, death or loss in case of an accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others". The purpose of this statute being to restrict liability to a guest to cases where injury has resulted from either intentional or reckless misconduct of the owner or operator, we have construed the words "his heedlessness or his reckless disregard of the rights of others" as meaning "`his heedless and his reckless disregard of the rights of others'". Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, 31.
The conflicting testimony to which we have referred, together with the physical facts testified to by Corporal Dubose without contradiction, was amply sufficient to carry to the jury the issue of whether the unfortunate accident was brought about by appellant's recklessness in approaching a dangerous curve without taking proper care, or in not having her car under control, or in operating it at a speed excessive in the circumstances. Peak v. Fripp, 195 S.C. 324, 11 S.E. (2d) 383. Appellant's Exception No. 1, charging error in the lower court's denial of her motions for nonsuit, direction of verdict, and judgment n. o. v., all of which were based upon the contention that there was no evidence of recklessness on her part, must, therefore, be overruled.
Exception No. 2 is as follows:
"The court erred in failing to grant appellant's motion for a new trial on the grounds stated in such motion, it being submitted:
*40 "(a) That it was error to refuse the requests to charge by appellant numbered 6, 8 and 9, as expressly and fully set forth in the motion by appellant.
"(b) That the charge by the court to the jury in regard to the mortality table was erroneous as the court failed to instruct the jury as to how the table could be applied to the plaintiff's case and there was no testimony to support this charge as made.
"(c) That the verdict of the jury was contrary to the evidence and the law."
This exception does not comply with the requirements of Rule 4, § 6, of this court, and might for that reason be disregarded. Holden v. Cantrell, 100 S.C. 265, 84 S.E. 826; Green v. McDaniel, 168 S.C. 533, 168 S.E. 197. We have considered it, however, and find it without merit.
Appellant's sixth request to charge reads as follows:
"I charge you that whether speed of a motor vehicle constitutes reckless disregard of the safety of others depends upon whether the speed was so great as to show an entire absence of care for the safety of the guest, and was so great as to exhibit a conscious indifference to consequences". This proposition was substantially covered in the general charge, which included correct definition of recklessness and instruction as to the statutory requirements concerning speed and as to the legal effect of their violation. In addition, the trial judge instructed the jury, at appellant's request, "that unless you find from the evidence in this case that the defendant, Frances Hill, was driving the automobile in which plaintiff was riding at the time of the accident in such a manner that you can say she intended to injure the plaintiff, or in such a manner that it amounts to a reckless disregard of the safety of the plaintiff, then you must find for the defendant".
Appellant's eighth request to charge was as follows:
"I charge you that a guest in a motor vehicle cannot sit idly by, observe an operation of the vehicle at a dangerous, *41 excessive rate of speed or the driver failing to use due care or maintain proper control, and if the guest fails to protest, then she cannot be permitted to hold the driver liable for damages resulting from such violation of a legal duty".
As thus proposed, the request does not state a sound legal proposition, for the rule barring recovery by a guest passenger because of his failure to warn, or to protest, or to demand that the automobile be stopped so that he may leave it, is subject to the qualification that there be reasonable time and opportunity for him to give such warning or make such protest or demand. 5 Am. Jur., Automobiles, Secs. 478, 479, pp. 771, 772. Moreover, the trial judge instructed the jury, at appellant's request, "that a guest in a motor vehicle cannot abandon the exercise of her own faculties, and entrust her safety absolutely to the driver, but if she observes the driver driving at an excessive, dangerous or reckless rate of speed or without proper care or control, then it is her duty to warn the driver and to protest against such speed".
Appellant's ninth request was as follows:
"I charge you that if you find from the evidence that the negligence, recklessness and heedlessness of the plaintiff in failing to exercise care or caution for her own safety or affirmative action on the part of the plaintiff that was negligent, reckless or heedless and either was the proximate cause or combined and concurred with the defendant driver's recklessness or wilfulness to bring about plaintiff's damages, then plaintiff cannot recover and you will find for the defendant". As above written, this request is confusing. The principles embodied in it were adequately covered in the general charge, and it was not error to refuse to charge it verbatim.
Subdivision (b) of Exception No. 2 has been abandoned. Subdivision (c) is too general to be considered.
*42 Exception No. 3 charges error on the part of the trial judge in failing to charge the jury "that the negligence and recklessness of an independent third party, which negligence and recklessness was the proximate cause of the accident, would relieve this defendant of any liability for the damages sustained by the plaintiff, this defense having been expressly plead in the answer of the defendant and supported by substantial testimony". In her fourth defense, appellant had alleged that while she was traveling on a curve in the narrow highway she met an automobile approaching at apparently high speed and partly on her side of the road; that this automobile failed to dim its light, and she moved over to the right to avoid a collision, whereupon the right wheels of her car apparently ran off the right side of the road, causing her to lose control, "all of which resulted from the negligent, careless and reckless operation of the approaching automobile, the identity of its operator being unknown to the defendant. The defendants further allege that the injuries sustained by the plaintiff were the result of an unavoidable accident insofar as the defendants are concerned and without any carelessness, negligence, heedlessness, recklessness or wilful disregard of the rights of others on the part of the defendants". At the conclusion of his charge, having excused the jury, the trial judge asked counsel if any additional instructions were desired, and called their attention to the fact that he had neglected to charge the law of accident. No request for further instructions having been made, he then recalled the jury and charged them on the law of unavoidable accident, stating that this was one of the defenses set forth in the answer, and concluding with the instruction that "if you find that the collision was accidental and was not proximately caused by the recklessness of the defendant, then you would have to find in favor of the defendant". If counsel conceived that by such reference to the fourth defense the trial judge had incorrectly stated the issue, he should have called the judge's attention to such misstatement; if he had *43 desired a more detailed charge or further instruction with regard to the fourth defense, he should have requested it. Having done neither, he cannot now complain. Drayton v. Industrial Life & Health Ins. Co., 205 S.C. 98, 31 S.E. (2d) 148; Thigpen v. Thigpen, 217 S.C. 322, 60 S.E. (2d) 621.
Upon the hearing of the motion for judgment n. o. v. or, in the alternative, for a new trial, there was before the court the stenographer's transcript of the trial proceedings. In this transcript the trial judge was quoted as having said, at the conclusion of counsel's argument of the motion for nonsuit: "I believe the things you have said are basically, should be directed to triers of the fact, which is the jury, not the triers of the law. I don't think I could see it as a matter of law. The only reasonable inference to be drawn from the whole testimony is that the driver of this car was not reckless, and I agree with you to this extent, that what you argue here is one reasonable inference to be drawn, but I think it is a jury question". In his order refusing the motion for judgment n. o. v. or new trial, the court stated that the above quotation was erroneous, and directed that this portion of the transcript be corrected to read as follows: "I believe the things you have said are basic, should be directed to the triers of fact, which is the jury, not the triers of the law. I don't think I could say as a matter of law that the only reasonable inference to be drawn from the whole testimony is that the driver of this car was not reckless, and I agree with you to this extent, that what you argue here is one reasonable inference to be drawn, but I think it is a jury question."
Exceptions 4 and 5, which question the right of the trial judge to thus settle the record of his own motion, are without merit. Obviously, the trial judge's statement had been erroneously recorded, for as transcribed it is quite incompatible with his ruling that immediately followed, refusing the motion for nonsuit. Moreover, his *44 statement of what he actually said is conclusive. State v. Sessions, 225 S.C. 177, 81 S.E. (2d) 287.
Exception No. 6 charges error in refusal of appellant's motion for new trial nisi upon the ground that "there was not sufficient or substantial evidence to support the amount of the jury's verdict, said verdict being the result of passion and prejudice and based upon improper and speculative evidence". So far as it was based upon the charge that the verdict was the result of passion and prejudice, the motion for new trial nisi was inappropriate. If a verdict is so grossly excessive as to indicate that the jury was moved by passion or prejudice, it is the duty of the trial court to set it aside, not reduce it. If its amount is such as to indicate merely undue liberality on the part of the jury, the power to reduce it rests with the trial judge alone, and his refusal to do so will not be reviewed here. Nelson v. Charleston & W.C. Ry. Co., S.C. 86 S.E. (2d) 56. Considering the motion in the instant case as one for a new trial absolute, we find no abuse of discretion by the trial judge in his denial of it. At the time of her injury respondent was twenty-six years of age and in good health. She had been employed in the same textile factory for about eight years, and at the time of the accident her rate of pay was $1.00 per hour. From the testimony of the surgeon who performed the operation on her leg immediately after the accident, and under whose care she still remained up to the time of the trial more than a year later, it appeared that she had undergone six operations, had been hospitalized for some fifteen weeks, was still totally disabled, would require surgical attention for nine months or a year longer, and would have some permanent disability because of shortening of the injured leg and limitation of motion in the knee and hip. In view of this testimony, we cannot say that the verdict, for $10,000.00 actual damages, was so shockingly excessive as to require the conclusion that it was the result of passion or prejudice.
Affirmed.
*45 BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur.
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24 F.3d 239
Henson-Elv.Ford**
NO. 93-05524
United States Court of Appeals,Fifth Circuit.
May 19, 1994
1
Appeal From: E.D.Tex.
2
DISMISSED.
**
Conference Calendar
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0824n.06
Filed: December 4, 2007
No. 06-6470
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPALACHIAN REGIONAL )
HEALTHCARE, INC., ) ON APPEAL FROM THE
) UNITED STATES
Plaintiff-Appellant, ) DISTRICT COURT FOR
) THE EASTERN DISTRICT
v. ) OF KENTUCKY
)
KY. NURSES ASS’N, et al., )
)
Defendants-Appellees. )
______________________________
BEFORE: MOORE and GRIFFIN, Circuit Judges; and TARNOW, District Judge.*
PER CURIAM. Appalachian Regional Healthcare (“ARH”) appeals a district
court’s decision upholding an arbitration award. The district court concluded that the
deference federal courts must accord an arbitrator’s decision required summary
judgment in favor of the unions, appellees here. Applying Michigan Family
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 06-6470
Appalachian Regional Healthcare, Inc. v. KY Nurses Ass’n, et al.
Resources v. Service Employees Int’l Union, 475 F.3d 746 (6th Cir. 2007) (en banc),
decided since the lower court’s decision, we agree, and therefore affirm.
I.
The background facts are adequately set forth in the District Court’s order and
will not be repeated here. See Appalachian Regional Healthcare, Inc. v. Kentucky
Nurses Ass’n, No. 05-150, 2006 WL 2947893 (E.D.Ky. Oct. 13, 2006). Suffice it to
say that the district court, applying the four-part test found in Cement Divisions, Nat’l
Gypsum Co. v. United Steelworkers, Local 135, determined that the arbitrator was
“arguably construing the contract consistently with accepted methods of contractual
interpretation.” Id. at *3-*4 (citing Cement Divs., 793 F.2d 759, 766 (6th Cir. 1986),
overruled by Mich. Family Res., 475 F.3d at 753).
II.
A.
No special standard governs appellate review of a district court’s decision to
vacate or enforce an arbitration award. Electronic Data Systems Corp. v. Donelson,
473 F.3d 684, 688 (6th Cir. 2007) (Moore, J.) (citing First Options of Chicago, Inc.
v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). Rather,
2
No. 06-6470
Appalachian Regional Healthcare, Inc. v. KY Nurses Ass’n, et al.
such a review “should proceed like review of any other district court decision finding
an agreement between parties, e.g., accepting findings of fact that are not ‘clearly
erroneous’ but deciding questions of law de novo.” Id. (quoting Kaplan, 514 U.S. at
947-48).
B.
An en banc panel of the Sixth Circuit recently overruled the Cement Divisions
four-part test. Mich. Family Res., 475 F.3d at 753. The panel reviewed two Supreme
Court cases decided since the 1986 Cement Divisions decision, United Paperworkers
Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 40 n.10, 108 S.Ct. 364, 98 L.Ed.2d
286 (1987), and Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121
S.Ct. 1724, 149 L.Ed.2d 740 (2001)).
The panel determined that “Cement Divisions [gave] federal courts more
latitude to review the merits of an arbitration award than the Supreme Court permits.”
Mich. Family Res., 475 F.3d at 751. Applying Misco and Garvey, the panel narrowed
the reviewing court’s inquiry to “whether the arbitrator is even arguably construing
or applying the contract and acting within the scope of his authority.” Id. at 752-53
(citing Misco, 484 U.S. at 38, 108 S.Ct. 364; Garvey, 532 U.S. at 509; 121 S.Ct.
1724) (quotation marks omitted).
3
No. 06-6470
Appalachian Regional Healthcare, Inc. v. KY Nurses Ass’n, et al.
Michigan Family Resources stated that
judicial consideration of the merits of a dispute is the rare exception, not
the rule. .. . . [I]n most cases, it will suffice to enforce the award that the
arbitrator appeared to be engaged in interpretation, and if there is doubt
we will presume that the arbitrator was doing just that.
Id. at 753 (emphasis added). C.
The Appellant argues that the arbitrator was not construing the contract, and
therefore, that his decision did not “draw its essence” from the collective bargaining
agreement. The district court’s decision applied Cement Divisions’ broader inquiry,
which permitted a court to vacate an award that did not “draw its essence” far more
easily than Michigan Family Resources will now allow. Despite that greater leeway,
that court determined that the arbitrator appropriately relied on past practice, properly
applied context to interpret seemingly explicit language, and therefore construed the
contract.
Under the guidance of Michigan Family Resources, if the arbitrator appeared
to be engaged in interpretation, we must enforce the award. That case summarized
its own analysis by observing that
[t]he arbitrator's ten-page opinion has all the hallmarks of interpretation.
He refers to, quotes from and analyzes the pertinent provisions of the
agreement, and at no point does he say anything indicating that he was
4
No. 06-6470
Appalachian Regional Healthcare, Inc. v. KY Nurses Ass’n, et al.
doing anything other than trying to reach a good-faith interpretation of
the contract.
Mich. Family Res., 475 F.3d at 754.
Here, too, the arbitrator’s decision quotes and applies the pertinent provisions
of the collective bargaining agreements, and performs a good-faith interpretation of
those agreements. The arbitrator was within the bounds of his authority, and his
decision arguably construed the collective bargaining agreement. Therefore, we
AFFIRM.
5
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IN THE COURT OF APPEALS OF IOWA
No. 17-0274
Filed July 5, 2018
ELLEN MCCULLOUGH by and through her Conservator, LYNN COLLINS
SEABA,
Plaintiff-Appellee,
vs.
EMERITUS CORPORATION d/b/a EMERITUS AT SILVER PINES, et. al,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,
Judge.
Defendants appeal from the district court’s ruling denying their motion to
compel arbitration. AFFIRMED.
Skylar J. Limkemann of Scheldrup Blades Schrock Smith, P.C., Cedar
Rapids, for appellants.
Benjamin P. Long and Pressley Henningsen of RSH Legal, P.C., Cedar
Rapids, for appellee.
Heard by Vogel, P.J., and Doyle and Bower, JJ.
2
DOYLE, Judge.
Defendants appeal from the district court’s ruling denying their motion to
compel arbitration. Because the district court did not err in determining defendants
waived their right to arbitration, we affirm the district court’s ruling.
I. Background Facts and Proceedings.
In February 2015, Dennis McCullough, one of Ellen McCullough’s six
children, filed suit on Ellen’s behalf as her court-appointed guardian and
conservator (collectively “plaintiffs”) against various defendants related to the
Silver Pines residential care facility. The defendants included Emeritus
Corporation and other legal entities that did business as Emeritus at Silver Pines
(collectively Silver Pines), as well as Silver Pines’s nursing director Jodie Bevans
and its administrator Michael Hunter (all defendants collectively “defendants”).
The underlying facts related to this appeal are not in dispute. The parties
agree that in March 2013, Ellen was admitted to Silver Pines by James
McCullough, another of Ellen’s children, who, at that time, had Ellen’s power of
attorney. As a part of the admissions process, Jim signed an “Agreement to
resolve disputes by binding arbitration” with Silver Pines on Ellen’s behalf. The
agreement stated, among other things, that the parties to the agreement would
first attempt to settle any disputes between themselves, then, if they were unable
to do so, the matter “shall be resolved exclusively by binding arbitration and not by
lawsuit or resort to the judicial process, except to the extent that applicable law
provides for judicial review of arbitration proceedings.”
Plaintiffs filed their petition in the Iowa District Court in February 2015.
Defendants filed their answer in April 2015, generally denying the claims asserted
3
against them. They also asserted affirmative defenses, including “that some or all
of the plaintiffs have committed a prior breach of contract with the defendants.”
The arbitration agreement was not mentioned nor was arbitration demanded.
Defendants never amended their answer.
The matter proceeded forward in district court, and a jury trial was set for
November 7, 2016. Additionally, in May 2015, the parties agreed to a case
schedule and discovery plan, including that plaintiffs’ expert witnesses would be
disclosed no later than 210 days before trial and defendants’ expert witnesses
disclosed no later than 150 days before trial. In August 2015, the parties agreed
to a twenty-day extension of their expert designation deadlines. Plaintiffs filed their
designation of expert witnesses September 22, 2015.
On May 20, 2016, defendants filed a motion to extend their expert witness
disclosure deadline. For reasons unknown to the district court, defendants’ motion
was not administratively placed in the court’s pending-motions queue and did not
come before the court until August 10, 2016. On that date, the court filed an order
noting defendants’ requested extension date had passed. The parties were
directed to advise the court as to whether an issue remained regarding the relevant
expert report. The court informed the parties that if an issue remained, the court
would take up the matter at an upcoming hearing set for August 24, 2016, when
the court was also to hear plaintiffs’ pending motion to compel discovery.
Following that hearing, the court denied defendants’ motion, finding that good
cause for an extension of the expert deadline had not been established. The
court’s order granting plaintiff’s motion to compel was granted September 11,
2016.
4
On September 13, 2016, about two months before the trial date, defendants
served on plaintiffs a written arbitration demand demanding plaintiffs “submit to
arbitration,” with the scope of arbitration to include “the allegations giving rise to
[plaintiffs’] lawsuit” pending in district court. Plaintiffs were requested “respond no
later than September 16, 2016.” On September 16, 2016, defendants filed a notice
of arbitration demand in district court. Defendants subsequently filed a motion to
compel arbitration, stating plaintiffs had refused to arbitrate. Plaintiffs resisted.
Following a hearing, the district court denied the defendants’ motion to compel
arbitration. The court concluded defendants waived their right to arbitrate under
the facts of the case, explaining:
Although they had the arbitration agreement in hand no later
than October 3, 2015, the defendants did not demand arbitration or
amend their answer to raise the existence of the arbitration
agreement as an issue until September [16], 2016, when they filed
their demand for arbitration. Thus, the demand for arbitration was
not served until the last day for filing motions in the case. The court
notes that the defendants now argue that they were not providing
witnesses for depositions and were not completing discovery
because they were essentially mulling over whether they wanted to
demand arbitration. Yet, nothing about the arbitration agreement
was mentioned at the hearing on the motion to compel or during any
of the motion practice prior to September 8. Instead, counsel argued
at the hearing on the motion to compel that he was having problems
locating witnesses and getting cooperation from his client. Thus, the
court finds this contention is not credible.
In a footnote, the court added:
The fact that arbitration was demanded just a few days after
the court denied the defendants’ request for additional time to
designate experts and/or provide expert opinions is not lost on the
court. The court’s denial of the motion prevented the defendants
from calling one of their experts as a witness. The court’s indications
at the hearing on the motion to compel and in ruling on the [Iowa
Rule of Civil Procedure] 1.944 motion were also a strong indication
to defendants that the court was likely to try the case as scheduled
and not likely to grant a continuance. It appears that these may have
5
been factors in the late decision to demand arbitration. At a
minimum, filing the motion to compel arbitration forced the court to
stay the case, and thus gave the defendants the continuance they
wanted.
Defendants appeal.
II. Discussion.
Defendants’ arguments on appeal are twofold. First, they argue the waiver
of arbitration by litigation conduct is an issue to be decided by an arbitrator rather
than the district court. Second, they contend that even if the district court had
jurisdiction to determine whether they waived their right to arbitration, the court
incorrectly answered the question.
A. Who Decides the Waiver Issue?
Defendants assert federal law applies to this case and mandates an
arbitrator, rather than the district court, decide whether they waived their right to
arbitrate the matter. This is relevant to our standard of review, because our review
of the issue is de novo under federal law but is for correction of errors at law under
state law. See Kelly v. Golden, 352 F.3d 344, 349 (8th Cir. 2003) (“We review de
novo the district court’s interpretation of the contract provision regarding arbitration
and examine for clear error the factual findings that formed the basis for the court’s
ruling.”); Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 29
(Iowa 1999) (“[O]ur review is for the correction of errors of law.”). Even applying
the more generous standard and reviewing the record de novo, we find no error
with the district court’s determination that defendants waived their right to arbitrate
the matter under the facts of this case.
Applying federal law without further analysis, we note:
6
A party to an arbitration agreement can waive its right to
arbitrate disputes in different ways. The Eighth Circuit has held that
claims of waiver based on some types of conduct must be decided
by courts, while claims of waiver based on other types of conduct
must be decided by arbitrators. In N & D Fashions, Inc. v. DHJ
Industries, Inc., the Eighth Circuit explained that courts generally
decide whether a party has waived its right to arbitrate by “actively
participat[ing] in a lawsuit or tak[ing] other action inconsistent with
the right to arbitration.” N & D Fashions, Inc. v. DHJ Industries, Inc.,
548 F.2d 722, 728 (8th Cir. 1976) (quotations omitted). By contrast,
arbitrators generally decide claims of waiver based on arguments
that arbitration “would be inequitable to one party because relevant
evidence has been lost due to the delay of the other. ” Id. The Eighth
Circuit described this second kind of waiver as “‘waiver’ . . . in the
sense of ‘laches’ or ‘estoppel.’” Id.
Lovelace Farms, Inc. v. Marshall, 442 S.W.3d 202, 206-07 (Mo. Ct. App. 2014)
(internal footnote omitted). As in Lovelace Farms, Inc., the record before us
confirms that this case involves an assertion of the first kind of waiver—waiver
through litigation conduct. See id. at 207. “Under N & D Fashions, waiver through
litigation conduct is clearly a matter for the court to decide.” Id. (citing N & D
Fashions, 548 F.2d at 728); see also Grumhaus v. Comerica Secs., Inc., 223 F.3d
648, 650 (7th Cir. 2000) (stating waiver of arbitration right is for the courts); Perry
Homes v. Cull, 258 S.W.3d 580, 587 n.17 (Tex. 2008) (citing federal cases). Under
federal law, the district court did not err in determining in the first instance that it
was the decider.
Defendants also argue that under state law, the issue of waiver must be
decided by the arbitrator, citing Des Moines Asphalt & Paving Co. v. Colcon
Industries Corp., 500 N.W.2d 70, 73 (Iowa 1993). In Modern Piping, Inc. v.
Blackhawk Automatic Sprinklers, Inc., the Iowa Supreme Court explained why, in
Des Moines Asphalt, it found the arbitrator was to decide whether the request for
arbitration was timely—“the contract [in the Des Moines Asphalt case] so provides
7
the arbitrator is allowed to make this initial decision regarding timeliness of the
request for arbitration.” 581 N.W.2d 616, 620 (Iowa 1998), (discussing Des Moines
Asphalt, 500 N.W.2d at 73), overruled on other grounds by Wesley Ret. Servs.,
Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 29 (Iowa 1999). Unlike the
contract in the Des Moines Asphalt case, the contract in Modern Piping, Inc. did
not contain “such provision.” See id. Though both contracts at issue were
arbitration agreements, only one specified the arbitrator was to decide the
timeliness of the request for arbitration. See id. This case is like Modern Piping,
Inc., and not Des Moines Asphalt. Consequently, even under state case law, the
district court did not err in determining in the first instance that it was the decider.
B. Did Defendants Waive Their Right to Arbitration?
Turning to the substantive argument presented in this appeal, defendants
argue that even if the district court had the jurisdiction to decide the issue, it erred
in concluding defendants waived their right to arbitration. We disagree.
“The party seeking arbitration may be found to have waived his right to it,
however, if he ‘(1) knew of an existing right to arbitration; (2) acted inconsistently
with that right; and (3) prejudiced the other party by these inconsistent acts.’” Kelly,
352 F.3d at 34 (citation omitted). Every one of these boxes is checked under the
facts of this case. As the district court pointed out, defendants “clearly had custody
and control of the agreement in question at all times material to this action.” In
fact, they drafted the agreement that Jim signed when Ellen was admitted to Silver
Pines. Nevertheless, they continued to litigate the suit in district court. They filed
an answer to the suit, asserting various affirmative defenses, but they did not
mention the arbitration agreement. We agree with the district court’s conclusion
8
that “[p]laintiffs were prejudiced because they incurred substantial expense and
engaged in significant effort as a result of [defendants’] early litigation activities.”
Even after defendants had the arbitration agreement in hand some time
prior to disclosing it on October 3, 2015, they continued to litigate. Again, as the
district court pointed out:
However, even if the court accepts the defendants’ argument and
considers only activity in the case after October 3, 2015, it is clear
the defendants waived the right to compel arbitration in this case.
First, [the defendants] never raised the existence of the arbitration
agreement in their answer. They never moved to amend the answer
to raise this issue. Second, after they produced the arbitration
agreement, [the defendants] continued to litigate this case. The
defendants designated experts, sought additional time to designate
experts and disclose opinions, resisted the plaintiffs’ motion to
compel, and participated in the hearing on the motion to compel
before they demanded arbitration. After [the defendants] demanded
arbitration but before they sought to compel arbitration, they sought
additional time to submit filings on the motion to compel, sought and
obtained a protective order, filed supplemental discovery responses,
and filed a motion in limine.
Finally, plaintiffs clearly incurred expenses and inconvenience as the result of
defendants sitting on their hands. This case could be the legal dictionary’s
definition of how a party waives their right to arbitration.
III. Conclusion.
The district court did not err in determining it was to decide the issue of
whether defendants waived their right to arbitration based on their litigation
conduct. Additionally, under the facts of this case, the district court did not err in
determining defendants waived their right to compel the matter to arbitration.
Accordingly, we affirm the ruling of the district court denying defendants’ motion to
compel arbitration. We do not retain jurisdiction.
AFFIRMED.
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153 F.Supp.2d 1055 (2001)
Heidi OTT A.G. and Heidi Ott, Plaintiffs,
v.
TARGET CORPORATION; the Brass Key, Inc.; Unimax Toys Limited; Unimax Toys (USA), Inc.; and John Pellegrene; Defendants.
No. CIV 99-1170 (PAMJGL).
United States District Court, D. Minnesota.
March 8, 2001.
*1056 *1057 *1058 Donald Wayne Niles, Norman M. Abramson, Patterson & Keough, Minneapolis, MN, for Plaintiffs.
John Bennett Gordon, James Robert Steffen, Kristin R. Eads, Faegre & Benson, Minneapolis, MN, Mark Joseph Chasteen, Michelle Bergholz Frazier, James Jenner McConnell, Dorsey & Whitney, Minneapolis, MN, Allen W. Hinderaker, Merchant & Gould, Minneapolis, MN, Valerie du Laney, C. Dean Little, Ashley Bale, Miller Nash Wiener Hager & Carlsen, Seattle, WA, D. William Toone, Mark S. Carlson, Dorsey & Whitney, Seattle, WA, John Allen Clifford, Kristina M. Foudray, Merchant & Gould, Minneapolis, MN, Larry L. Saret, Martin L. Stern, Rita A. Abbati, Kevin C. Trock, William A. Meunier, Laff Whitesel & Saret, Chicago, IL, for Defendants.
MEMORANDUM AND ORDER
MAGNUSON, District Judge.
This matter is before the Court on Defendants' Motions for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment. For the reasons that follow, the Court grants in part and denies in part each Defendant's Motion and denies Plaintiffs' Motion.
BACKGROUND[1]
Plaintiff Heidi Ott ("Ott"),[2] a Swiss citizen, has designed and manufactured artisan dolls for many years. On November 2, 1982, Ott registered her mark, Heidi *1059 Ott®, with the United States Patent and Trademark Office (Reg. No. 1,215,011). Ott's handmade dolls range in price from $100 to several thousand dollars, and are primarily sold through small doll specialty shops catering to serious doll collectors. In 1989 she created her first line of mass-produced dolls, the Little Ones collection. The Little Ones dolls are 12 inch international dolls dressed in traditional costume. Although mass-produced, Ott maintains that these dolls retain the distinctive characteristics of her handmade dolls.
In June 1994, after noting the overwhelming success of The Pleasant Company's American Girl collection of mass-produced 18 inch vinyl dolls,[3] Ott began exploring the possibility of producing similar dolls for sale in the United States. Ott asked Julie Abdo ("Abdo"), an avid doll collector who resides in Minnesota, if she could help Ott cultivate business opportunities in the United States. Abdo eagerly accepted.[4]
In August 1994, Ott and her son, Karl, traveled to Minneapolis to meet with Abdo, whereupon they were introduced to Abdo's longtime friend Defendant John Pellegrene ("Pellegrene"), Executive Vice President of Target. Pellegrene, the Otts, and Abdo discussed the possibility of collaborating on a project involving traditionally dressed 18 inch vinyl dolls that would be priced under $40.00. Although at the time of Ott's meeting with Pellegrene, Target sold a small selection of porcelain dolls, its arrangement with Ott would signal its first real foray into the collectible doll market.
During the meeting, Pellegrene also expressed an interest in Ott's 12 inch Little Ones dolls for a project with Disney centered on the "It's a Small World" theme. According to Ott, Pellegrene indicated that one million dolls would be needed for the Disney project. Believing that they were to be used to further negotiate the Disney project, Ott left samples of her Little Ones dolls and doll clothing with Pellegrene. In fact, the samples were shown to a sales representative of Defendant Unimax, Michael Boe, for the alleged purpose of creating lower quality knock-off dolls, the "Dolls of All Nations." (Boe Dep. at 71, 77-81, 85-86.)
In March 1995, Ott returned to Minneapolis with samples of her newly created 18 inch dolls. Target was pleased with the samples, and the parties proceeded to discuss the details of their business relationship. Ott agreed to design and produce 6,000 18 inch vinyl dolls under the label "Best Friends" for a test market in a few dozen Target stores, with the understanding that more substantial orders would follow. Again, Ott left samples of her dolls in Minnesota with Target, and, again, Ott alleges that Target forwarded the samples to a competitor, this time Defendant Brass Key, for the purpose of making knock-offs. The alleged knock-offs of her 18 inch dolls were later sold exclusively by Target under the name "Liberty Landing."
In the fall of 1995, while perusing a "Target the Family" magazine containing an article about her and her new Best Friends collection, Ott noticed an advertisement for Unimax's Dolls of All Nations. Ott was immediately struck by the similarity between her Little Ones dolls and the Dolls of All Nations. Like her Little Ones collection, the Dolls of All Nations collection included 12 inch dolls dressed in traditional *1060 international costumes. In addition, Ott was concerned that the advertisement's proximity to the article about her created the impression that the Dolls of All Nations were made by her, particularly because the source of the dolls was not indicated on the advertisement.
In November 1995, Target ran a test market of Ott's Best Friends dolls in Chicago, Arizona, the Twin Cities. In conjunction with the test market, Target held doll signings in several Twin Cities stores. The test market was, by any standard, a success. Target customers began lining up 4-5 hours in advance of the Ott doll signings. Within hours, Target sold out of Ott's dolls at the stores that held doll signings. (Abramson Aff., Ex. H39, H67.) Sales also exceeded expectations in stores that did not hold doll signings. (See id. Ex. H33-36, H39.)
At a meeting with Target on December 4, 1995, Ott raised her concerns about the Dolls of All Nations collection, which had been introduced in Target stores nationwide just prior to the test market of Ott dolls. Ott advised that Target customers were presenting her with Dolls of All Nations at the signings believing that they were her creations. Ott specifically asked that Target instruct Unimax to destroy the molds used to make the Dolls of All Nations. (Id. Ex. H38.) In response, Target agreed not to sell the Dolls of All Nations in Europe, where Ott's Little Ones are particularly well-known. (Id.) In addition, Target promised that future Dolls of All Nations would not look similar to her Little Ones dolls. (Id.)
At the same meeting, Ott asserts that Target ordered 200,000 more Best Friends dolls for sales in Target stores nationwide. Thereafter, Ott expanded her manufacturing facility in China and began training the approximately 200 workers needed to manufacture 200,000 dolls per year. However, in July 1996, Target decreased the order to 75,000 dolls, allegedly because the test market did not go as well as expected. (See Target Mem. in Supp. Mot. for Sum. J. at 6 n. 1.) Although Target acknowledges that it had initially forecasted the need for 200,000 Ott dolls for 1996, it denies ever ordering or ever promising to order that amount for 1996 or any other year.
In the spring of 1996, Ott produced the 18 inch dolls, renamed "Faithful Friends," for sale in Target stores nationwide. At the same time, Target increased the number of porcelain dolls on its shelves and began selling collectible dolls from other manufacturers such as the Heritage Collection, Helmut Engel, and Danbury Mint. Target also added Brass Key's Liberty Landing collection to its product line at that time.
In the fall of 1996, Target expanded its collectible doll offerings to encompass the entire side of an aisle. Target's goal was to create a store-within-a-store by displaying the service mark "Collector's Lane" and a stylized "CL" logo across the entire aisle with street sign outriggers and shelf headers that suggested a row of quaint houses along the aisle. In addition, Collector's Lane included two glass front display cases-one displaying Barbie dolls and the other displaying Ott's Faithful Friends and Brass Key's Victorian Rose porcelain dolls. The display case containing Ott's Faithful Friends was marked with a cling-on placard incorporating the Collector's Lane mark and representing that the dolls contained therein were "Faithful Friends by Heidi Ott." The placard also incorporated a picture of Ott and descriptions of her Faithful Friends dolls.[5]
Ott first saw the Liberty Landing dolls when she returned to the United States in *1061 the winter of 1996 for a Target-sponsored promotional tour. Ott claims that she became immediately concerned upon seeing the dolls. She suspected that, as with her Little Ones dolls, her Faithful Friends dolls had been copied. In addition, Ott was distressed by the fact that Liberty Landing dolls were intermingled on the shelves with Faithful Friends dolls and that some Liberty Landing dolls had actually been placed in the glass case behind the Ott placard. (See Ott Dep. 790-93, 785-87, 841-42; Abdo Aff. ¶ 14.) Ott, her son, and Abdo discussed the problem with Pellegrene, who promised to investigate the matter. (Id.) According to Ott, when they also discussed the problem with Target buyer Joe Fusaro, he became defensive and retorted that Target could place merchandise on its shelves as it wished. (See Abdo Aff. ¶ 14.) Target did not responded to Ott's allegations regarding the Liberty Landing dolls until March 1997, at which time Target denied having any knowledge that the dolls were knock-offs of Ott's dolls. Target suggested that Ott contact Brass Key directly.
Target maintains that although it vigorously marketed Ott's Faithful Friends collection, the dolls simply did not meet sales expectations. As a result, in the fall of 1997, Target ordered only 10,000 Faithful Friends dolls. By October 1998, Target had decided not to purchase any more dolls from Ott, although Ott was not informed of that decision until December 1998. No Ott dolls were shipped to Target in 1999, and Target sales of Ott dolls ended by mid-1999. In total, Target sold approximately $4.8 million worth of Ott dolls and accessories.
On July 29, 1999, Ott commenced this lawsuit against Target, Pellegrene, Unimax, and Brass Key alleging trademark dilution, Lanham Act unfair competition, common law unfair competition, deceptive trade practices, unlawful trade practices, and unjust enrichment and quantum meruit by all Defendants; and trademark infringement, false advertising, violation of publicity rights, and promissory estoppel by Target and Pellegrene (collectively "Target"). These claims are based on three primary theories: (1) Target induced Ott's participation by false representation; (2) through Target, Brass Key and Unimax misappropriated Ott's Little Ones and Faithful Friends doll designs; and (3) Target improperly used Ott's name, likeness, and trademark to market non-Ott dolls and to promote its Collector's Lane line of dolls, furniture, and clothing. For their part, Defendants raise the affirmative defenses of laches, equitable estoppel, and the doctrine of acquiescence and/or waiver.
In November 1999, Ott moved for a preliminary injunction to enjoin Target from using, posting, or displaying placards featuring Ott, her trademark, or her photograph, after learning that some Target stores had failed to remove such placards even though Ott dolls were no longer being sold there. On December 3, 1999, this Court granted the injunction. Defendants now move separately for summary judgment on all counts contained in the Complaint and Ott moves for partial summary judgment on Defendants' asserted affirmative defenses, on her claim against Target for false advertising and violation of her right to publicity, and on the validity of her trademark.
DISCUSSION
A. Standard
Summary judgment is proper if there are no disputed issues of material fact and *1062 the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unigroup, Inc. v. O'Rourke Storage & Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir.1996). However, as the United States Supreme Court has stated, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quotation omitted).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Krenik, 47 F.3d at 957.
B. Unimax's and Brass Key's Motions
1. Trade Dress Infringement
In Counts III-VI of the Complaint, Ott alleges that the overall appearance of Brass Key's Liberty Landing dolls and Unimax's Dolls of All Nations are so similar to her Faithful Friends and Little Ones dolls as to constitute trade dress infringement in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and Minn.Stat. §§ 325D.44 and 325F.13.[6] Unimax and Brass Key argue that Ott has no protectable trade dress because her dolls have no identifiable or tangible common features. In response, Ott argues that all of her dolls share a "signature look" readily identifiable by doll collectors and other consumers familiar with her work. Ott asserts that Unimax and Brass Key directly copied and imitated her dolls, such that her "signature look" was captured in its dolls.
Section 43(a) of the Lanham Act creates a federal claim for trade dress infringement. 15 U.S.C. § 1125(a)(1); Woodsmith Publ'g Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990). "The trade dress of a product is the total image of a product, the overall impression created, not the individual features." Woodsmith, 904 F.2d at 1247 (citing General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 627 (8th Cir.1987)). Although trade dress infringement historically included only the packaging of a product, it has been expanded to encompass the design or appearance of the product itself. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 214-15, *1063 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); see also Am. Greetings Corp. v. Dan-Dee Imps., Inc., 807 F.2d 1136, 1140-41 (3d Cir.1986).
In order to establish that her claimed trade dress is entitled to protection, Ott must prove that: (1) the trade dress is primarily nonfunctional; (2) it is inherently distinctive or has acquired distinctiveness through secondary meaning; and (3) its imitation would result in a likelihood of confusion as to the source of the dolls in the minds of consumers. Insty* Bit, Inc. v. Poly-Tech Indus., Inc., 95 F.3d 663, 667 (8th Cir.1996). Whether each element is satisfied is a question of fact. Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 868 (8th Cir.1994).
a. Functionality
Trade dress is nonfunctional and thus protectable "if it is an arbitrary embellishment primarily adopted for purposes of identification and individuality." Aromatique, 28 F.3d at 873. In determining functionality, the Court must view the design elements as a whole, not individually. Rainforest Cafe, Inc. v. Amazon, Inc., 86 F.Supp.2d 886, 894 (D.Minn.1999). If a feature or a combination of features of a product is functional, it is not protected and may be copied by competitors in the marketplace, even if such imitation will cause consumer confusion. See Dan-Dee, 807 F.2d at 1141. On the other hand, if a competitor can effectively compete without copying a particular feature or combination of features, the trade dress is nonfunctional. Rainforest Cafe, 86 F.Supp.2d at 894.
In this case, Unimax and Brass Key argue that Ott's claimed trade dress, her "signature look," is essentially the realistic look of the dolls, which is itself functional and therefore not protectable. Ott does not, however, seek protection for her dolls on the basis that they are realistic. Rather, Ott argues that the essence of her particular realistic-looking doll design has been captured by Unimax and Brass Key. She points to the following features in her dolls, which, in combination, create her signature look: soft bodies, darker skin pigmentation, hand painted eyes, high quality construction, realistic features, and overall facial design. (Pls.' Mem. in Opp'n Unimax's Mot. for Sum. J. at 9-10.) While Ott's description of her trade dress could be more specific, the Court is unable to find that the trade dress is functional as a matter of law. Ott herself acknowledges that other competing doll manufacturers have adopted different aesthetic design features for their realistic-looking 12 inch and 18 inch dolls. (See id. at 24; Pls.' Mem. in Opp'n Brass Key Mot. for Sum. J. at 23-24.) In addition, she has presented unrebutted testimony that her dolls have an overall aesthetic appeal that is unique enough to be recognized without the display of her trademark. (See Sanders Aff. ¶¶ 3-4; Heyerdahl Aff. at 2; Coffey Aff. ¶ 5; Kokesch Aff. ¶ 5; Jaslof Dep. at 52-53, 78-79; Howell Aff. ¶ 5; Wiedman Aff. ¶ 3; Moudree Aff. ¶ 2; Sullwold Aff. ¶ 3; Dasmann Aff. ¶ 2.) Moreover, the Court notes that collectible dolls, by their very nature, are purchased for their aesthetic value. (See Abramson Aff., Ex. M2.) Therefore, categorically labeling Ott's realistic-looking dolls functional as a matter of law would ignore the inherently nonfunctional aspects of her dolls' appeal. Thus, the Court finds that a genuine issue of material facts exists as to whether her Little Ones and Faithful Friends doll designs are functional. Unimax and Brass Key are not entitled to summary judgment on this issue.
b. Distinctiveness
Trade dress is distinctive and capable of being protected if it is inherently distinctive or has acquired distinctiveness *1064 through secondary meaning. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Ott does not allege that the trade dress of her dolls is inherently distinctive.[7] Thus, the sole concern relating to this element is whether the trade dress of her dolls has acquired distinctiveness through secondary meaning. Trade dress acquires secondary meaning when "in the minds of the public, the primary significance of the [trade dress] is to identify the source of the product rather than the product itself." Wal-Mart, 529 U.S. at 211, 120 S.Ct. 1339 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). Ott has presented evidence that at least within the collectible doll industry, including consumers of collectible dolls, her designs are readily identified as Ott dolls. (See Sanders Aff. ¶¶ 3-4; Heyerdahl Aff. at 2; Coffey Aff. ¶ 5; Kokesch Aff. ¶ 5; Jaslof Dep. at 52-53, 78-79; Howell Aff. ¶ 5; Wiedman Aff. ¶ 3; Moudree Aff. ¶ 2; Sullwold Aff. ¶ 3; Dasmann Aff. ¶ 2.) Unimax and Brass Key have not rebutted such evidence, but instead argue that because the general public is unfamiliar with her trade dress, secondary meaning has not attached.
To establish secondary meaning, the trade dress user must show by exclusive and extensive use in the sale of its goods, "the [trade dress] has become so associated in the public mind with such goods that the mark serves to identify the source of the goods and to distinguish them from those of others." Aromatique, 28 F.3d at 870. Trade dress users can prove secondary meaning through direct evidence which includes consumer surveys and testimony of consumers or through circumstantial evidence, which includes deliberate copying of the mark. Id.; Tone Bros., Inc. v. Sysco Corp., 28 F.3d 1192, 1201 (Fed.Cir.1994). Deliberate copying of the mark may raise an inference of secondary meaning. Aromatique, 28 F.3d at 870. However, where there is a demand for the product, "capitalizing on that demand by copying that product does not necessarily indicate that the original product has secondary meaning." Id.
In this case, Ott has presented both direct and circumstantial evidence to demonstrate that Ott's trade dress is recognized by the relevant consumer group. First, as noted above, Ott has presented several affidavits in which doll collectors attest to the distinctively recognizable look of Ott's dolls. Second, Ott has presented evidence that Target customers purchased Liberty Landing dolls and Dolls of All Nations, believing them to be Ott dolls, despite the differences in packaging. (See Sullwold Aff. ¶¶ 6-7; Abdo Aff. ¶¶ 4-9; Ott Dep. at 814; Heyerdahl Aff. at 2.) Finally, there is also evidence that Unimax and Brass Key directly copied Ott's Little Ones and Faithful Friends collections without conspicuously placing their trademarks on their products. Although packaged differently than Ott's dolls, the packages containing Dolls of All Nations and Liberty Landing dolls did not prominently display their sources. Compare Aromatique, 28 F.3d at 871 (holding that the *1065 defendants' deliberate copying did not support an inference of secondary meaning because the defendants conspicuously placed its trademark on the product). In total, Ott has produced enough evidence to create a genuine issue of material fact as to whether the "signature look" of the Ott dolls have acquired secondary meaning.
c. Likelihood of Confusion
In order to find that a likelihood of confusion exists, "there must be a substantial likelihood that the public will be confused." Children's Factory, Inc. v. Benee's Toys, Inc., 160 F.3d 489, 494 (8th Cir.1998) (quoting WSM, Inc. v. Hilton, 724 F.2d 1320, 1329 (8th Cir.1984)). While actual confusion is not essential to proving likelihood of confusion, the mere possibility of confusion is not enough. Id. In determining whether a likelihood of confusion exists, the Court considers: (1) the strength of the owner's trade dress; (2) the similarity between the owner's trade dress and the alleged infringer's trade dress; (3) the degree to which the products compete with each other; (4) the alleged infringer's intent to "pass off" its goods as those of the owner; (5) incidents of actual confusion; and (6) the type of product, its costs, and conditions of purchase. Insty* Bit, 95 F.3d at 667. No factor is determinative, rather they represent a guide to determine if a reasonable jury could find that a likelihood of confusion exists. Id. at 670.
After reviewing the evidence and weighing the relevant factors, the Court concludes that there is a genuine issue of material fact as to likelihood of confusion. First, there is evidence that Ott's trade dress is strong. Strong trade dress can be shown through favorable reviews in magazines, nationally televised programs, and extensive advertising. Rainforest Cafe, 86 F.Supp.2d at 898. In this case, the strength of Ott's trade dress is evinced by the plethora of articles and advertisements in doll magazines about Ott and her unique designs, her numerous doll industry awards, her customary appearances at international toy shows, Target's own national advertising promoting her fame, and strong consumer recognition. (See Abramson Aff., Ex. B.)
Second, there are similarities between Ott's Little Ones and Faithful Friends and Unimax's Dolls of All Nations and Brass Key's Liberty Landing dolls, respectively. "Similarity of the [trade dresses] ... must be considered as they are encountered in the marketplace. Although similarity is measured by the [trade dresses] as entities, similarities weigh more heavily than differences." Vitek Sys., Inc. v. Abbott Labs., 675 F.2d 190, 192 (8th Cir.1982) (quoting Alpha Indus. v. Alpha Steel Tube & Shapes, 616 F.2d 440, 444 (9th Cir. 1980)). "Similarity of trade dress is determined by the overall impression of a trade dress as a whole, rather than through a comparison of the individual features." Rainforest Cafe, 86 F.Supp.2d at 898. In this case, a reasonable jury could conclude that the overall impression of the features of Unimax's and Brass Key's dolls are substantially similar to the overall features of Ott's dolls. As previously noted, Ott has presented substantial evidence that consumers and doll collectors found Unimax's and Brass Key's dolls to be confusingly similar.
Third, there is evidence that at least Ott's Faithful Friends collection and Brass Key's Liberty Landing collection were in direct competition. The two collections were similarly priced, incorporated a similar theme, were located side-by-side on Collector's Lane, and were both sold exclusively at Target. Although Ott's Little Ones were not sold at Target alongside the Dolls of All Nations, it is not clear that the two collections were not in competition. *1066 They were, after all, identically sized dolls based on the same international theme. Nevertheless, even a finding that the Little Ones dolls and the Dolls of All Nations were not in direct competition does not require the entry of summary judgment in favor of Unimax. See id. at 899 ("Direct competition requires a lesser degree of showing to establish likelihood of confusion than products not in direct competition with one another."). Therefore, on balance, this factor weighs against the entry of summary judgment on the issue of likelihood of confusion.
Fourth, there is a genuine issue of material fact as to whether Unimax and Brass Key intended to pass off their dolls as Ott dolls. This factor involves a two step inquiry addressing: (1) intent; and (2) passing off. Id. Thus, even if the alleged infringer deliberately or intentionally copied the trade dress of another, a finding of intent to pass off is inappropriate "if the alleged infringer clearly represents to the ultimate consumer that its products and trade dress are unique and distinct from those of the other." Id. Ott has presented evidence that at the direction of Target, Unimax and Brass Key obtained copies of Ott dolls for the purpose creating knock-offs. Furthermore, the Dolls of All Nations and Liberty Landing dolls did not conspicuously display their manufacturers' mark. Instead, the name of the manufacturer was placed in small print on the bottom or back of the box. Based on this evidence, a reasonable jury could find that Unimax and Brass Key not only deliberately copied Ott's dolls, but also that they intended to pass off their dolls as Ott dolls.
Fifth, there is undisputed evidence that consumers were actually confused about the source of Unimax's and Brass Key's dolls. "While actual confusion is not essential to a finding of trade dress infringement, ... it does provide positive evidence of a likelihood of confusion." Id. at 900. As previously discussed, Ott has documented several instances in which Target customers bought Dolls of All Nations and Liberty Landing dolls believing them to be Ott dolls. In fact, Target employed line monitors during Ott's doll signings to ensure that those customers holding Dolls of All Nations or Liberty Landing dolls did not give them to Ott to sign. (See Sullwold Aff. ¶ 6-7.) In addition, as recently as November 2, 2000, sellers on the Internet auction site eBay.com misidentified Dolls of All Nations as Ott creations. (See Niles Supp. Aff. Ex. 25.) The Court is well aware that actual confusion is not conclusive as to the existence of a likelihood of confusion. See Woodsmith, 904 F.2d at 1249. Nevertheless, the Court finds that there is sufficient evidence of actual consumer confusion to raise a genuine issue as to this factor.
Finally, the Court has considered the type of product in issue, its costs, and conditions of purchase. The essential inquiry here is "whether the degree of care exercised by the purchaser can eliminate the likelihood of confusion." Rainforest Cafe, 86 F.Supp.2d at 903 (quoting Swisher Mower & Machine, Inc. v. Haban Mfg., Inc., 931 F.Supp. 645 (W.D.Mo.1996)). In other words, a finding that the product is inexpensive and not the kind a consumer would devote inordinate time and attention in making a purchasing decision weighs in favor of a conclusion that a likelihood of confusion exists. Id. In this case, the products in issue, ranging in price from $10.00 to $39.00, were relatively inexpensive. Furthermore, Target customers were required to individually remove the dolls for purchase from the shelves. Given the similarities between the dolls and the arguably confusing shelving of the dolls discussed more fully below, a consumer looking for an Ott doll who did not devote significant time to the purchasing decision could very well have been confused about *1067 the source of the dolls. Indeed, the evidence shows that Target customers purchase-or almost purchase-either Dolls of All Nations or Liberty Landing dolls, believing them to be Ott dolls. (See Sullwold Aff. ¶¶ 6-7; Abdo Aff. ¶¶ 4-9; Ott Dep. at 814; Heyerdahl Aff. at 2.)
In summary, after reviewing the evidence, including the dolls in issue, the Court is not convinced that Ott's claim of trade dress infringement fails as a matter of law. Accordingly, Unimax's and Brass Key's Motions for Summary Judgment are denied on this issue.
2. Trademark Dilution
For the reasons discussed below in the context of Target's Motion for Summary Judgment, Ott's trademark dilution claim against Unimax and Brass Key is dismissed. In addition, the Court notes that there has been no evidence presented that either Unimax or Brass Key actually made commercial use of Ott's trademark. As such, Ott's claim of trademark dilution against them is inappropriate. Count II of Ott's Complaint is dismissed as to Unimax and Brass Key.
3. Unjust Enrichment and Quantum Meruit
Finally, Unimax and Brass Key contend that Ott's claim of Unjust Enrichment and Quantum Meruit must be dismissed as preempted by the Copyright Act, 17 U.S.C. § 301 (the "Act"). "The Copyright Act provides the exclusive source of protection for `all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of the copyright as specified in [the Act].'" Nat'l Car Rental Sys., Inc. v. Computer Assocs., Int'l, Inc., 991 F.2d 426, 428 (8th Cir.1993) (quoting 17 U.S.C. § 301(a)). A state claim is preempted by the Act if: (1) the work in issue is within the subject matter of copyright; and (2) the state-law-created right is equivalent to any of the exclusive rights within the general scope of the Act. Id. The Act "grants to the copyright owner the exclusive right to reproduce the copyrighted work, prepare derivative works and to distribute copies of the work." CSM Investors, Inc. v. Everest Dev., Ltd., 840 F.Supp. 1304, 1314 (D.Minn.1994).
Ott does not dispute that her dolls are within the subject matter of copyright. Thus, to the extent that Ott bases her unjust enrichment and quantum meruit claims on Unimax's and Brass Key's distribution and copying of her dolls, those claims are preempted. See Zimmerman Group, Inc. v. Fairmont Foods of Minnesota, Inc., 882 F.Supp. 892, 895 (D.Minn. 1994) (finding preemption of unjust enrichment claim where it was based on acts of copyright infringement). In the Complaint, Ott alleges simply that: "By failing to compensate Plaintiffs for the use of their dolls and designs, Defendants have been unjustly enriched at the expense of Plaintiffs." (Compl.¶ 88.) This allegation sounds squarely in copyright infringement. Accordingly, based on the language contained in the Complaint, Ott's claim of unjust enrichment and quantum meruit are dismissed.
C. Target's Motion
1. False Advertising
In Counts III though VII of the Complaint, Ott alleges that Target violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), common law unfair competition laws,[8] and Minn.Stat. §§ 325D.44, 325D.13, and 325F.67 by promoting, advertising, and selling Heidi Ott knock-offs, using the *1068 Heidi Ott mark to improperly enhance the value of Target's Collector's Lane, and improperly using photographs of Ott to market non-Ott dolls. (See Compl. ¶¶ 74-81.) Section 43(a) of the Lanham Act proscribes the false designation of a product's origin and false descriptions of products.[9]See 15 U.S.C. §§ 1125(a)(1). "The underlying purpose of § 43(a) is to protect both consumers and competitors from a wide variety of misrepresentations of products and service, implicating `a broad spectrum of marks, symbols, design elements and characters.'" 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 92 n. 13 (2d Cir.1984) (quoting Warner Bros. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir. 1981) and Invicta Plastics (USA) Ltd. v. Mego Corp., 523 F.Supp. 619, 623 (S.D.N.Y.1981)).
At the outset of this discussion it should be noted that this is not a typical false advertising case. This is not, for example, a case in which the defendant made direct or indirect comparisons of its products with those of the plaintiff. See, e.g., Pizza Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489, 496 (5th Cir.2000), petition for cert. filed, ___ U.S. ___, 121 S.Ct. 1355, 149 L.Ed.2d 285 (2001) (discussing advertisement comparing pizza quality and taste); Porous Media Corp. v. Pall Corp., 110 F.3d 1329, 1331 (8th Cir.1997) (discussing advertisement comparing the effectiveness of industrial filters). Nor does it involve a defendant falsely advertising the "characteristics" of its or another's product. See, e.g., Rhone-Poulenc Rorer Pharm., Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 514 (8th Cir.1996) (advertisement falsely indicating that the plaintiff's drug may be substituted for the defendant's drug); Surdyk's Liquor, Inc. v. MGM Liquor Stores, Inc., 83 F.Supp.2d 1016, 1025 (D.Minn.2000) (advertisement stating that certain wines would be in stock and available when they were either not in stock or in stock in extremely small quantities). Rather, this case involves a retailer, Target, that is alleged to have orchestrated the creation, promotion, and sale of Heidi Ott® knock-offs in such a manner that the consuming public was led to believe that the knock-offs were in fact Ott products. This scheme was not only dependent on Target's alleged misconduct, but also on the complicity of the knock-offs' manufacturers, Unimax and Brass Key. Simply put, if Unimax and Brass Key had not created dolls directly modeled after Ott's Little Ones and Faithful Friends collections, Target's allegedly misleading marketing is not likely to have resulted in consumer confusion as to the source of the dolls. Indeed, Ott does not claim that Target's similar promotion of other dolls displayed on Collector's Lane constituted false advertising. Her concern is only with those dolls that bear a striking resemblance to her own: the Liberty Landing dolls and the Dolls of All Nations.
*1069 In order to establish a false advertising claim under the Lanham Act and related state statutes, Ott must prove that: (1) Target made a false statement of fact about its own or Ott's product in a commercial advertisement; (2) the statement actually deceived or tended to deceive a large segment of its audience; (3) the deception was likely to influence buying decisions; (4) Target caused the false statement to enter interstate commerce; and (5) Ott has been injured as a result of the false statement. Blue Dane Simmental Corp. v. Am. Simmental Ass'n, 178 F.3d 1035, 1042-43 (8th Cir.1999); see also LensCrafters, 943 F.Supp. at 1488 ("In evaluating any claims that are brought under both the State and Federal [false advertising] Statutes, the Court applies the same analysis.").[10] Each element in issue will be discussed separately.
a. False Statement of Fact
A plaintiff may satisfy this burden by demonstrating that the defendant either made literally false statements of fact or literally true statements of fact that were likely to mislead consumers. LensCrafters, 943 F.Supp. at 1488. In this case, Ott alleges that Target engaged in both literally false advertising and true but misleading advertising.
Ott first claims that Target's use of the Ott placard constituted literally false statements. In order to be deemed literally false the statement must be a "specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact." Pizza Hut, 227 F.3d at 496 (quoting Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir.1999)). In determining whether a statement is literally false, "a court must analyze the message conveyed in full context." Rhone-Poulenc, 93 F.3d at 516 (quoting Castrol, Inc. v. Pennzoil Co., 987 F.2d 939, 946 (3d Cir.1993)). For example, "[t]he greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the apparent conclusion ... the less likely it is that a finding of literal falsity will be supported." United Indus. Corp. v. The Clorox Co., 140 F.3d 1175, 1181 (8th Cir.1998).
In this case, Target's use of the Ott placard must be assessed in the two different contexts in which it appears to have been used. In the first, only Faithful Friends dolls were placed behind the placard bearing Ott's mark and likeness. In the second, non-Ott dolls were placed behind the Ott placard. Clearly, Target's use of the Ott placard in the first instance cannot be found to be literally false because the placard accurately represented that the dolls directly behind it were Ott dolls. However, in the second instance, a reasonable jury could find that the Ott placard constituted a literally false statement. The explicit factual message conveyed by the placard was that dolls placed behind it were Ott dolls. Ott has presented concrete evidence that in at least one store, unboxed Liberty Landing dolls as well as other unboxed dolls were placed behind the Ott placard. (See Niles Aff., Ex. 8.) Thus, the placard's representation that the dolls were created by Ott doll was "capable of being proved false [and] of being reasonably interpreted as a statement of objective fact." Pizza Hut, 227 *1070 F.3d at 496. The Court rejects Target's argument that simply having a non-Ott doll behind the Ott placard is insufficient as a matter of law to prove literal falsity. Because the determination of whether a statement is literally false is an issue of fact requiring contextual analysis, the question is properly left to the jury. See LensCrafters, 943 F.Supp. at 1488.
Although Ott's claim of literal falsity with respect to Target's use of the placard is sufficient to survive summary judgment, the Court rejects Ott's claim of literal falsity insofar as she relies on Target's alleged understocking of her dolls. Although Ott correctly notes that understocking can be the basis for a finding of literally false advertising, see Surdyk's, 83 F.Supp.2d at 1025, this is not such an instance. In Surdyk's, the plaintiff challenged the defendant's wine sale advertisement, which listed stock numbers, sales prices, and descriptions of the sale wine. Id. at 1024. The advertisement further indicated that the wines listed would be "immediately available" at the locations indicated therein. Id. Upon investigating the availability of the wine advertised, the plaintiff found that a number of the wines were either completely out of stock or stocked only small bottle quantities. Id. at 1025. The court concluded that the plaintiff was likely to succeed in proving literal falsity because the actual inventory in the defendant's stores "directly contradict[ed]" the defendant's advertised claims. Id.
In this case, Target did not engage in advertising similar to the defendant in Surdyk's. No Target advertisement indicated that Ott's dolls would be "immediately available." In addition, apart from the advertising relating to the test market, Target never indicated to the public that Ott dolls would be available at specific stores at specific times and in specific quantities. This Court will not read Surdyk's so broadly as to include general understocking, without more, within the realm of false advertising.
Ott also alleges that the advertisements and in-store promotions of Faithful Friends, the Dolls of All Nations, and Liberty Landing dolls, even if literally true in some contexts, were executed in such a way that consumers were led mistakenly to believe that they were Ott dolls. After carefully reviewing the record, the Court believes that the evidence presented by Ott raises a legitimate question as to whether Target's promotion of the dolls in question was literally true but misleading. In particular, the Court notes Target's use of an unidentified Ott doll to advertise Collector's Lane furniture,[11] the aforementioned use of the Ott placard, the fact that Faithful Friends and Brass Key's Liberty Landing dolls were interspersed on the shelves below display cases bearing Ott's placard, and the fact that in at least one instance a Liberty Landing doll was actually sold in an Ott box. (See Niles Aff., Ex. 8; Patti Dep. at 8-10, 42.) In addition, while not sufficient in itself to constitute a literally false statement, the alleged understocking in this case could have contributed to consumer confusion as to the source of the dolls in issue.[12] Finally, given the intentional similarities between the dolls and the fact that the Ott look-a-likes were sold in packages that did not *1071 readily identify the dolls' manufacturers, consumers could have been misled into believing that the non-Ott dolls were in fact Ott dolls. At a minimum, there is a genuine issue as to whether Target's promotion of the dolls was misleading. Accordingly, Target's Motion for Summary Judgment cannot be granted in this respect.
Ott also argues that Target engaged in misleading advertising by methodically co-branding the Ott brand with Target's own Collector's Lane brand. According to Ott's expert, Deborah Roedder John, Ph.D. ("John"), "[c]o-branding is a marketing strategy where two or more brand names are used to identify a product or service." (John Expert Report at 13.) It essentially involves the "marriage of two or more brands." (Id.) John opines that Target used a "co-branding strategy for marketing Collector's Lane that involved the unauthorized use of the Heidi Ott® brand." (Id. at 14.) Specifically, "Target used the Heidi Ott® name (itself a registered trademark), picture, and dolls in combination with the Collector's Lane brand name and logo in a way that, in effect, co-branded the Heidi Ott® brand with the Collector's Lane brand." (Id.) John concluded that as a result of Target's co-branding strategy, "it is reasonable that consumers would infer that Heidi Ott was the designer of all dolls in Collector's Lane." (Id. at 17.) John also concluded that as a consequence of Target's co-branding scheme, the good will of Ott's business has suffered irreparable damage. (Id. at 21-24)
This theory is certainly interesting and the Court does not doubt Ms. John's qualifications. Nevertheless, whether Ott has generally presented a credible claim of false advertising based on her theory of co-branding need not be determined. As argued by Target, there is conclusive undisputed evidence that Ott acquiesced, both directly and through Julie Abdo, to Target's use of the Collector's Lane mark in conjunction with her own. (See Abdo Aff. ¶¶ 10, 12-14.) That Target's use of the Collector's Lane mark may have ultimately had results unforeseen by Ott will not save her theory of co-branding. The fact remains that at all relevant times, Ott authorized and even encouraged Target to use the marks in conjunction with one another. (See id.) In addition, since 1996, Target has built up its collectible doll and doll accessory offerings around the use of the Collector's Lane mark such that it would be unjust to require Target to stop using the mark. Moreover, the Court is mindful that the mark in issue is not Ott's mark, but Target's registered service mark. Restricting Target's ability to use its own mark would be an extreme remedy under any circumstances. Accordingly, the Court concludes that Ott's co-branding theory is equitably barred by the doctrine of acquiescence.[13]See Conan Props., Inc. v. Conans Pizza, Inc., 752 F.2d 145, 152 & n. 3 (5th Cir.1985) (approving a jury's finding of acquiescence where plaintiff knew of defendant's use of its mark, impliedly authorized the use of the mark, and after receiving plaintiff's authorization defendant built up its business using the mark).
*1072 b. Consumer Confusion
Although formally an element of Ott's prima facie case, whether Ott will ultimately bear a burden of proof as to consumer confusion depends on whether the jury finds the statements in issue to be literally false or literally true but misleading. If the statements of fact in issue are found to be literally false, Ott will be relieved of the burden of establishing that the consuming public was actually misled by the false statement. LensCrafters, 943 F.Supp. at 1488. The same presumption of deception will attach to true but misleading statements if the jury concludes that Target acted deliberately to deceive consumers. Porous, 110 F.3d at 1333.
As previously discussed, there are genuine issues of material fact as to whether the statements in issue were literally false. In addition, Ott has presented ample evidence beyond mere conjecture from which a jury could conclude that Target's conduct was deliberate. First, as previously discussed, there is at least a genuine issue of material fact as to whether Target instructed Unimax and Brass Key to make knock-offs of Ott's dolls. Second, there is evidence that Target failed to follow its own explicit written policies regarding the handling of the intellectual property rights of others. For example, when faced with Ott's accusations of infringement, rather than immediately notifying Target's legal department and determining whether the accused vendor's account should be placed on hold, (see Abramson Aff., Ex. V), Target did basically nothing. When Ott confronted Target about the striking similarities between her Little Ones and the Dolls of All Nations, Target did not investigate the matter, but merely assured her that future Dolls of All Nations would not be similar. Likewise, when confronted about the similarities between the Liberty Landing dolls and her Faithful Friends collection, Target did nothing but refer the matter to Brass Key. While these could have been a mere lapses in usual procedure, the consistency with which Target failed to follow its own regulations when dealing with Ott suggests something more deliberate. Thus, the Court cannot conclude as a matter of law that the presumptions do not apply. This is ultimately a question for the jury.
c. Proof of Causation and Injury
As with consumer confusion, a presumption of causation and injury sufficient to entitle the plaintiff to damages will arise if the defendant deliberately engaged in deceptive comparative advertising. Porous, 110 F.3d at 1336. On the other hand, no proof of actual injury is required for injunctive relief. Id. The reason for this distinction was explained by a leading commentator:
Since § 43(a) was passed to protect consumers as well as competitors, the courts are not and should not be reluctant to allow a commercial plaintiff to obtain an injunction even where the likelihood of provable impact on the plaintiff may be subtle and slight. Congressional policy appears to encourage commercial firms to act as the fabled `vicarious avenger' of consumer rights. An injunction, as opposed to money damages, is no windfall to the commercial plaintiff. An injunction protects both consumers and the commercial plaintiff from continuing acts of false advertising. Money damages, on the other hand, primarily aid only the competitor, and he is required to satisfy a much higher standard of proof as to injury in order to recover damages.
3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.04(3)(d) (3rd ed.1996) (footnotes omitted).
*1073 Because the proposed remedy dictates the standard that will apply with respect to proof of injury, the Court must first ascertain the precise relief sought by Ott. Based on a review of the Complaint and Ott's memoranda of law, it is quite clear that Ott seeks both injunctive relief and money damages in this case. In particular, Ott seeks to require Target to engage in corrective advertising to rectify consumer confusion caused by Target's alleged misrepresentations. (Pls.' Mem. in Opp'n Target's Mot. for Sum. J. at 17.) Target argues that Ott's relief should be limited to money damages because there is no remaining injunctive relief available to her. While it is true that Target has not carried Ott dolls since 1999 and that no Ott placards remain in any Target stores, the Court is not convinced that injunctive relief is an inappropriate remedy in this case, particularly in light of the fact that as recently as November 2, 2000, sellers on the Internet auction site eBay.com misidentified Dolls of All Nations as Ott creations. (See Niles Supp. Aff. Ex. 25.) Inasmuch as Target may have contributed to the confusion surrounding the dolls in question, Ott's request for corrective advertising is neither legally nor factually inappropriate. See Rhone-Poulenc, 93 F.3d at 516 (approving corrective advertising as a method of injunctive relief to counter defendant's false advertising relating to the capabilities of plaintiff's drug). Thus, the Court will not limit the forms of relief available to Ott in this case.
To the extent that Ott seeks injunctive relief, she has indeed established the minimum necessary to proceed to trial. Whether Ott may also proceed on her claim of damages is another, more complicated matter. Again, in order for the presumption of injury to arise where damages are sought, the plaintiff must establish that the defendant deliberately engaged in deceptive comparative advertising. Porous, 110 F.3d at 1336; see also Ortho Pharm. Corp. v. Cosprophar, Inc., 32 F.3d 690, 696 (2d Cir.1994) (disfavoring "presumptions of harm in cases where the products are not obviously in competition or where the defendant's advertisements make no direct reference to any competitor's products."). As previously discussed, this case does not involve comparative advertising. According to Target, this fact renders the presumption of injury inapplicable. For her part, Ott acknowledges that this is not a comparative advertising case. However, she argues that the Porous presumption should be extended to apply in cases such as this where particular products are involved.
In resolving this issue, the Court finds instructive the reasons supporting the distinction based on the type of advertising involved. As explained by the Eighth Circuit,
In a suit for money damages where a defendant misrepresented its own product but did not specifically target a competing product, plaintiff may only be one of many competitors, and without proof of causation and specific injury each competitor might receive a windfall unrelated to its own damage.
Porous, 110 F.3d at 1335-36. Despite Target's protestations to the contrary, the Court does not believe that an award of damages in this case would result in a windfall to Ott. Ott's complaint is not a generalized grievance about Target's promotions and advertising. Rather, Ott claims that Target's advertising both directly and indirectly misled consumers to believe that Liberty Landing dolls and the Dolls of All Nations were manufactured by Ott. This claim does not involve other collectible doll manufacturers. Indeed, as previously noted, Ott's false advertising claim is dependent on the similarities between the above-identified dolls. As such, Ott, rather than collectible doll manufacturers *1074 generally, was injured by Target's alleged misconduct, and an award of damages based on Target's conduct would not result in a windfall to Ott. The Court therefore concludes that the presumption of causation and injury applicable to cases involving comparative advertising applies with equal force in this case. That being decided, the Court further concludes that, as with the presumption of deception, Ott has raised genuine issues of material fact as to whether the prerequisites of this presumption have been met.
In summary, notwithstanding the somewhat atypical aspects of this case, Defendants' alleged conduct appears to fall within the purview of state and federal false advertising statutes. Whether Defendants should actually be found liable under the statutes is of course another matter entirely, left solely to the jury.
2. Target's Use of Ott's Trademark and Likeness
Ott alleges that Target "deliberately used and willfully and maliciously promoted the [Heidi Ott] mark in interstate commerce to sell dolls and goods related to dolls which are not manufactured by or affiliated with Heidi Ott A.G.," (Compl.¶ 60), in violation of trademark infringement laws and the common law right to publicity. Target argues only that it cannot be held liable for trademark infringement or violation of Ott's right to publicity because as a retailer selling her products, it had the right to use her mark and likeness. While it is true that Target may not be held liable for using Ott's mark and likeness to sell her goods, it certainly may be liable for using the mark and likeness to sell non-Ott goods. See Baskin-Robbins Ice Cream Co. v. D & L Ice Cream Co., 576 F.Supp. 1055 (E.D.N.Y. 1983) (finding a violation of § 43(a) of the Lanham Act where the defendants sold non-BaskinRobbins ice cream at a Baskin-Robbins outlet in Baskin-Robbins' cups). Although Target denies having done so, there is a material factual dispute as to this issue.
In particular, the Court notes that Ott has presented undisputed evidence that Ott's mark was used to sell non-Ott dolls. For example, there is concrete evidence that in at least one Target store, an unboxed Liberty Landing doll was placed in a glass case on which the Ott placard was prominently displayed. (See Niles Aff., Ex. 8.) In addition, at least one Liberty Landing doll was sold in an Ott package. (See Patti Dep. at 8-10, 42.) Target maintains that these instances are merely discrete aberrations and therefore insufficient as a matter of law to constitute trademark infringement. The Court strongly disagrees. Faced with evidence that Target actually sold non-Ott dolls by using the Ott name and mark, whether by design or mistake, the Court is compelled to allow this case to go forward. Ultimately, whether Target's actions constituted trademark infringement or a violation of Ott's right to publicity will be determined by a jury. Thus, the Court denies Target's motion with respect to Ott's claims of trademark infringement and violation of the right to publicity. Target also argues that Ott's trademark and right to publicity claims fail because Ott acquiesced to its use of her mark and likeness. As previously discussed, there is sufficient evidence in the record that she complained to Target when she became concerned with its use of her mark. (See Ott Dep. 790-93, 785-87, 841-42; Abdo Aff. ¶ 14; Abramson Aff., Ex. H72.) The Court therefore cannot conclude as a matter of law that Ott acquiesced to Target's particular use of her mark and likeness.
3. Trademark Dilution
Trademark dilution is "separate and distinct from trademark infringement." *1075 Luigino's, Inc. v. Stouffer Corp., 170 F.3d 827, 832 (8th Cir.1999). "Infringement depends on a likelihood of consumer confusion over the source of a product, while dilution by blurring concerns `the lessening of the capacity of a famous mark to identify and distinguish goods or services.'" Id. In other words, the Federal Trademark Dilution Act ("FTDA") "creates a remedy against non-competing trademark uses such as `DuPont shoes, Buick aspirin, and Kodak pianos.'" Viacom Inc. v. Ingram Enters., Inc., 141 F.3d 886, 888 (8th Cir.1998) (quoting 141 Cong. Rec. H14317 (daily ed. Dec. 12, 1995) (statement of Rep. Moorehead)). To establish a claim of trademark dilution under the FTDA, 15 U.S.C. § 1125(c), Ott must show that her mark is famous, that Defendants began using the mark after it became famous, and that Defendants' use of the mark dilutes the distinctive quality of the mark by causing consumers to connect the mark with different products. See Luigino's, 170 F.3d at 832. Target argues that Ott's dilution claim must fail because at most the mark is famous within the niche market of doll collectors. Target asserts that protection of a mark not famous to the general public would give Ott "a virtual monopoly" over the mark. (Target Reply Mem. at 12.) In response, Ott maintains that a mark's high degree of fame within a niche market is sufficient to meet FTDA requirements.
As noted by the parties, the Eighth Circuit has not yet squarely addressed this issue, and there is an apparent split among courts that have weighed in on the issue. See Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 640 (7th Cir. 1999) (collecting cases).[14] After considering the arguments on both sides of the debate and reviewing Eighth Circuit law on the general subject of the FTDA, this Court adopts the view that, at least in this context, the niche-market theory is inconsistent with the purposes of trademark dilution law. The Court is particularly persuaded by Circuit Judge Barry's dissent in Times Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 174 (3d Cir.2000):
If marks can be `famous' within some market, depending on how narrowly that market is defined, then the FTDA will surely devour infringement law. Indeed, the unauthorized use of a mark in the same or a similar market is precisely what good old-fashioned infringement principles have traditionally been there to remedy once actual confusion or likelihood of confusion has been shown, and there is simply no need for dilution principles. Can one imagine a clearer case for application of those principles than if one were to begin manufacturing automobiles and calling those automobiles `Buick'? ... Congress was quite clear, however, that the FTDA was not designed for situations in which ordinary infringement law provided a remedy but, rather, for those situations in which a truly famous mark on dissimilar products deserves, but cannot receive, protection under infringement law-those situations *1076 in which, for example, no one would ever confuse that truly famous mark with the goods or services to which it has been wrongly attached.
Furthermore, the Eighth Circuit has made clear that dilution laws are designed to protect marks from non-competing uses. See Viacom, 141 F.3d at 888. Because this case involves directly competing products, application of the niche-market theory would result in an over-extension of the protection afforded by the FDTA and would render trademark infringement laws duplicative. Indeed, based on the reasoning of Judge Barry, the FTDA categorically does not apply in this case, regardless of whether the niche-market theory is applied. Accordingly, Ott's trademark dilution claim fails as a matter of law.
4. Promissory Estoppel[15]
Finally, Ott claims that she is entitled to recover under the doctrine of promissory estoppel. Ott identifies three allegedly unfulfilled promises made by Pellegrene on behalf of Target: (1) the promise to "aggressively promote and advertise" her dolls; (2) the promise to buy one million Little Ones dolls for the Disney project; and (3) the promise to buy at least 200,000 Faithful Friends dolls per year. (Compl.¶ 90.) Target seeks summary judgment on Ott's promissory estoppel claim, arguing principally that the statute of frauds renders the alleged promises unenforceable. Pellegrene denies ever making any of the statements in question.
Importantly, "[p]romissory estoppel is the name applied to a contract implied in law where no contract exists in fact." Starry Constr. Co., Inc. v. Murphy Oil USA. Inc., 785 F.Supp. 1356, 1367 (D.Minn.1992). "The effect of promissory estoppel is to imply a contract from a unilateral or otherwise unenforceable promise coupled by detrimental reliance on the part of the promisee." Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 230 N.W.2d 588, 593 (1975). In contrast, the statute of frauds operates to render unenforceable certain contracts not reduced to writing. See Minn.Stat. § 336.2-201(1) ("Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.").
In this case, Ott does not contend that the promises she relies on for her promissory estoppel claim formed the bases of actual contracts. Indeed, if she did, the doctrine of promissory estoppel would be "wholly inapplicable." Starry Constr., 785 F.Supp. at 1367 (citing Del Hayes & Sons, 230 N.W.2d at 593). Thus, Target's statute of frauds defense, which pertains exclusively to contracts, is quite clearly inapposite. Nevertheless, Target points to specific language in several Minnesota cases in support of its position: "the doctrine of promissory estoppel [may] be used to take [a] contract out of the Statute of Frauds ... when the promise relied upon is a promise to reduce the contract to writing." Lunning v. Land O'Lakes, 303 N.W.2d 452, 459 (Minn.1980); see also Starry Constr., 785 F.Supp. at 1365 n. 1 ("[P]romissory estoppel takes the contract out of the statute of frauds ... only when the promise relied upon is a promise to reduce the contract to writing."). Target interprets this language to mean that all promissory estoppel claims based on an *1077 oral promise are barred by the statute of frauds unless the promise relied upon is a promise to reduce the contract to writing. (See Target Mem. in Supp. at 28.) The Court finds this interpretation untenable. The language relied on by Target relates to oral promises attendant to underlying oral contracts, rather than oral promises generally. In contrast, this case involves oral promises, not oral contracts. Thus, the statute of frauds has no bearing on this case whatsoever. Moreover, were the Court to adopt Target's reading of the language in question, the doctrine of promissory estoppel would be eviscerated. Target's statute of frauds defense therefore categorically fails.
Although Target devotes most of its time advancing its statute of frauds defense, it also questions the merits of Ott's promissory estoppel claim. Under Minnesota law, promissory estoppel applies to bind a promisor to:
[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance ... if injustice can be avoided only by enforcement of the promise.
Starry Constr., 785 F.Supp. at 1367 (quoting the Restatement (Second) of Contracts § 90). Target argues that Pellegrene's alleged promises to "aggressively promote and advertise" Ott's dolls is not sufficiently clear and definite to support a claim of promissory estoppel. See Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992) (holding that a promise must be "clear and definite" in order to be enforced under the doctrine of promissory estoppel). The Court agrees. The words allegedly used by Pellegrene were simply too subjective and vague to have any specific meaning. Moreover, Ott admitted that she considered Pellegrene's bold statements about the promotion of her dolls to be mere puffery. (See Ott. Dep. at 135-36.) Therefore, the Court grants summary judgment to Target insofar as Ott's claim is based on Pellegrene's promises relating to the promotion and advertising of her dolls. However, because Target does not challenge the merits of her claim relating to the two other promises, they remain a part of her claim.
Finally, Target argues that Pellegrene should be dismissed from this Count because he was acting solely on behalf of Target when he allegedly made the promises in issue. Given that Pellegrene is the only Target representative alleged to have made any of the statements in issue and that he has presented no compelling arguments or law supporting his dismissal, he shall remain a Defendant to this Count.
D. Ott Motion for Partial Summary Judgment
1. Validity of Trademark
Ott first seeks the entry of summary judgment as to the validity of her trademark registration. However, as argued by Defendants, a finding that Ott's trademark is valid and incontestable would not result in summary judgment. Rather, such a finding is only the first step in determining whether the mark was infringed upon. Consequently, the Court denies Ott's Motion for Summary Judgment with respect to this issue. See Kendall McGaw Labs., Inc. v. Cmty Mem'l Hosp., 125 F.R.D. 420, 421 (D.N.J.1989) ("Summary judgment may be had as to one claim among many, but it is well settled that [Rule 56 does not] allow[] such a judgment as to one portion a claim.").
2. Affirmative Defenses
Ott also seeks summary judgment on Defendants' affirmative defenses of laches, waiver, and equitable estoppel. After reviewing the facts and law relevant to the *1078 defenses, the Court is satisfied that there are genuine issues of material fact precluding summary judgment in favor of Ott. Ott's Motion is therefore denied in this respect.
3. False Advertising and Right to Publicity Claims
Finally, Ott also seeks summary judgment as to her Right of Publicity and False Advertising claims against Target. As previously discussed in the context of Target's Motion, there are genuine issues of material fact precluding summary judgment as to those claims. As such, Ott's Motion must also fail on this ground.
CONCLUSION
For the foregoing reasons, and upon all of the files, records, and proceedings herein, the Court grants in part and denies in part each Defendant's Motion and denies Plaintiffs' Motion.
Accordingly, IT IS HEREBY ORDERED that:
1. Brass Key's Motion for Summary Judgment (Clerk Doc. No. 145) is GRANTED IN PART AND DENIED IN PART;
2. Unimax's Motion for Summary Judgment (Clerk Doc. No. 123) is GRANTED IN PART AND DENIED IN PART;
3. Target's Motion for Summary Judgment (Clerk Doc. No. 156) is GRANTED IN PART AND DENIED IN PART;
4. Counts II, IV, and IX of Ott's Complaint (Clerk Doc. No. 1) are DISMISSED WITH PREJUDICE; and
5. Ott's Motion for Partial Summary Judgment (Clerk Doc. No. 167) is DENIED.
NOTES
[1] The facts in this case are extensive and largely disputed. The Court will set forth only those facts specifically relevant to the Court's disposition of the matter.
[2] Heidi Ott A.G., a Swiss corporation, is also a Plaintiff in this case. (Compl.¶ 1.) The Court will refer to Plaintiffs collectively as "Ott."
[3] The American Girl collection includes doll accessories and story books relating to each doll. Yearly sales reach approximately $150 million. (Abramson Aff., Ex. H6.)
[4] Abdo ultimately acted as the sales representative for Ott in connection with all of her sales to Target. (Abdo Aff. ¶ 2.)
[5] Specifically, the placard includes the following description of Faithful Friends:
Designed by famous Swiss doll maker Heidi Ott
Double-stitched, layered clothing
Beautiful hand-painted facial features
Comes with certificate of authenticity
Limited edition
(Civello Aff. Ex. W.)
[6] In Count IV of her Complaint Ott also alleges that Unimax's and Brass Key's trade dress violations constitute common law unfair competition. Because Count IV is without independent, separate basis, and is therefore duplicative of other Counts in Ott's Complaint, the Court summarily dismisses Count IV. See LensCrafters, Inc. v. Vision World, Inc., 943 F.Supp. 1481, 1490-91 (D.Minn.1996) (holding that where a common law unfair competition claim is "duplicative of another Count in the Complaint, the claim for unfair competition cannot stand.").
[7] Had she made such a contention, it would have been unavailing. In Wal-Mart, 529 U.S. at 212, 120 S.Ct. 1339, the Supreme Court held that trade dress claims based on product design require a finding of secondary meaning because product design cannot be inherently distinctive. The Court reasoned that,
In the case of product design, as in the case of color, we think consumer predisposition to equate the feature with the source does not exist. Consumers are aware of the reality that, almost invariably, even the most unusual of product designs-such as a cocktail shaker shaped like a penguin-is intended not to identify the source, but to render the product itself more useful or more appealing.
Id.
[8] As above, Count IV of the Complaint is dismissed against Target as duplicative of Counts III, V, VI, and VII. See Supra n. 6; LensCrafters, 943 F.Supp. at 1490-91.
[9] The statute provides in relevant part:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
* * * * * *
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
[10] Ott's claim under Minnesota Statutes Section 325F.67 has different elements than the Ott's other false advertising claims. In order to prevail on this Count, Ott must establish: (1) intent; (2) publication; (3) a false or misleading advertisement; and (4) damage. LensCrafters, 943 F.Supp. at 1491; see also Minn. Stat. §§ 325F.67, 8.31. Because each element in issue is discussed in the context of Ott's other false advertising claims, the Court will not discuss this count separately.
[11] Although the advertisement did not directly misidentify the doll as a Liberty Landing or other doll, it was also not identified as a Heidi Ott® doll.
[12] The Court notes that Target received a staggering number of consumer complaints about the understocking of Ott's dolls, (see Abramson Supp. Aff. W1), which tends to contradict Ott's allegations that the understocking led consumers to believe that Liberty Landing dolls were Ott dolls. Nevertheless, the issue remains one for the jury.
[13] The issue of co-branding is distinct from the issue of whether Target impermissibly used the Ott mark to sell non-Ott dolls. While Ott may have acquiesced to Target's use of the Collector's Lane mark, the Court is unable to find as a matter of law that she acquiesced to the questionable use of her own mark. There is ample evidence in the record that she complained to Target when she became concerned with its use of her mark. (See Ott Dep. 790-93, 785-87, 841-42; Abdo Aff. ¶ 14; Abramson Aff., Ex. H72.) However, there has been no evidence presented that she ever complained about Target's use of the Collector's Lane mark in conjunction with her own.
[14] The Seventh Circuit specifically found that:
At an initial glance, there appears to be a wide variation of authority on this issue. Some cases apparently hold that fame in a niche market is insufficient for a federal dilution claim, while some hold that such fame is sufficient. However, a closer look indicates that the different lines of authority are addressing two different contexts. Cases holding that niche-market fame is insufficient generally address the context in which the plaintiff and defendant are using the mark in separate markets. On the other hand, cases stating that niche-market renown is a factor indicating fame address a context like the one here, in which the plaintiff and defendant are using the mark in the same or related markets.
Syndicate Sales, 192 F.3d at 640.
[15] In her brief, Ott raises for the first time the doctrine of equitable estoppel. Because she did not plead that theory in her Complaint, it is not properly before the Court and will not be considered.
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306 F.2d 290
Martin POPPER, Appellant,v.UNITED STATES of America, Appellee.
No. 16445.
United States Court of Appeals District of Columbia Circuit.
Argued February 1, 1962.
Decided July 5, 1962.
Mr. Leonard B. Boudin, New York City, for appellant. Mr. David Rein, Washington, D. C., also entered an appearance for appellant.
Mr. Anthony G. Amsterdam, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson and William Hitz, Asst. U. S. Attys., were on the brief, for appellee. Messrs. Charles T. Duncan, Principal Asst. U. S. Atty., and John R. Schmertz, Asst. U. S. Atty., also entered appearances for appellee.
Before PRETTYMAN, Senior Circuit Judge, and BASTIAN and BURGER, Circuit Judges.
PER CURIAM.
1
Appellant was convicted of criminal contempt of Congress, under 2 U.S.C. § 192, for refusal to answer certain questions of a subcommittee of the House Committee on Un-American Activities. A pre-trial motion to dismiss the indictment filed on behalf of appellant alleged inter alia that "the indictment fails to set forth the question under inquiry * * *." This motion was denied and, at a subsequent trial before a jury, appellant was found guilty of the crime charged against him. From the judgment and sentence entered against him by the District Court in conformity with the jury's verdict, Popper appeals to this court, urging again, among other grounds, the insufficiency of the indictment.
2
Bound as we are by the recent decision of the United States Supreme Court in Russell v. United States and related cases, 369 U.S. 749, 779, 781, 82 S.Ct. 1038, 8 L.Ed.2d 240 we reverse the judgment of the District Court.
3
We do not pass on any other points raised by appellant.
4
Reversed.
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304 S.C. 250 (1991)
403 S.E.2d 648
P. John DeSTEFANO, Appellant
v.
CITY OF CHARLESTON, Respondent.
23383
Supreme Court of South Carolina.
Heard February 19, 1991.
Decided April 22, 1991.
*251 Andrew K. Epting, Jr. and W. Andrew Gowder, Jr., both of Wise & Cole, P.A., Charleston, for appellant.
William B. Regan and Frances I. Cantwell, Charleston, for respondent.
Heard Feb. 19, 1991.
Decided April 22, 1991.
TOAL, Justice:
This appeal involves whether the City of Charleston properly rezoned certain portions of a developer's property, and whether the City's act of withholding building permits until the developer granted a drainage easement constitutes a temporary taking of the developer's property without just compensation. The lower court ruled in favor of the City on all issues. We affirm.
FACTS
John DeStefano, a real estate developer for twenty-five years, purchased a tract of land on James Island in 1984. Finding it too difficult to comply with Charleston County drainage requirements, DeStefano sought and obtained annexation of the tract into the City of Charleston. After annexation, DeStefano secured a zoning classification of DR-12 (a multi-family designation), allowing for twelve units to the acre.
In May 1985, the City Engineering Department approved the plaintiff's engineering plans for the construction of a road (Stefan Drive), utilities, and drainage for the development entitled DeStefano of Riverland Place. The plans showed a twenty-foot drainage easement along the rear lot lines of all the lots on the east side of Stefan Drive. This easement was to be dedicated to the City and would drain the lots on the east side of the road.
In October 1985, the City Planning and Zoning Commission gave final approval to a forty-lot subdivision plat for Riverland Place. The approved plat did not show the easement on *252 the lots on the east side of Stefan Drive. The Deputy City Engineer indicated that after the Planning and Zoning Commission had approved a subdivision plat, if engineering plans required the delineation of easements, roads or other public areas, then such items would be superimposed on the plat prior to its being recorded. In November 1985, DeStefano's forty-lot plat was revised to show the easement.
This plat was never recorded, as a dispute arose over the proper eastern boundary of Riverland Place. The dispute concerned whether a ditch which ran along the eastern border was within DeStefano's property line. The ditch followed the general line of the twenty-foot-wide drainage easement DeStefano planned to grant to the City. DeStefano relinquished all claim to the ditch area, believing the City would no longer require a drainage easement from him if he did not own the ditch. Deputy City Engineer John Fersner erroneously agreed with DeStefano that no drainage easement would be required of him. Subsequently, DeStefano received a $87,000 settlement for the survey error in a suit he brought against the surveyor.
In January 1986, DeStefano submitted a new plat for recording which eliminated the easement and showed altered depths for the lots on the east side of Stefan Drive that had been affected by the boundary change. The width of several of these lots was changed as well. This plat also showed an additional twelve lots on the west side of Stefan Drive, making this a plat for a subdivision of fifty-two lots, as opposed to forty lots on the previously approved plat.
Unaware that this new plat was not the one previously approved by the Planning and Zoning Commission, the Zoning Administrator erroneously told the Deputy City Engineer the plat had been approved. Though the Deputy City Engineer knew of the boundary change, he was unaware of the addition of the twelve lots on the new plat, and apparently would not have stamped the plat for recording had he realized this fact, since the Ordinances of the City of Charleston clearly require the Planning and Zoning Commission to approve a plat such as the one submitted. The plat was recorded on January 27, 1986.
Over the next several weeks, DeStefano transferred lots pursuant to this recorded plat. It is not clear when the City Staff learned of the discrepancy between the approved forty-lot plat and the recorded fifty-two-lot plat, but when it did, it *253 sought to have the recorded plat brought to the Planning and Zoning Commission for approval. The matter was first on the Planning and Zoning Commission meeting agenda on February 18, 1986.
At this meeting, a number of neighboring residents expressed concern that the multifamily dwelling character of Riverland Place was exacerbating drainage problems in the area. Prior to the recordation of the plat in January 1986, a neighborhood petition containing residents' concerns with stagnant and standing water and other drainage-related problems was delivered to a member of the Planning and Zoning Commission. At its February meeting and subsequent meetings, the Planning and Zoning Commission deferred action on the plat to further investigate the drainage matter. The Planning and Zoning Commission has not to date approved the recorded fifty-two-lot plat. After several months of attempting to work out a solution with DeStefano, the City ultimately refused to issue new building permits in Riverland Place until a drainage easement was granted, but did honor all previously issued building permits.
By June 1986, the City had agreed to a reduced width of the easement, but nonetheless insisted on the easement. Additionally, the City indicated to the plaintiff a willingness to be lenient with variances. In October 1986, DeStefano indicated he would re-plat the area in question for single family zoning and would grant the City the drainage easement. A twenty-six-lot plat was submitted to the Planning and Zoning Commission in February of 1987 and approved subject to verification of DeStefano's drainage calculations. However, DeStefano never recorded this plat. The City, over DeStefano's objection, subsequently rezoned the area as single family residential (SR-4) in order to alleviate drainage and density problems. Shortly thereafter, DeStefano filed suit against the City, seeking damages for a temporary taking of his property and the right to build multifamily dwellings on the property. The lower court ruled in favor of the City, and DeStefano timely appealed.
LAW/ANALYSIS
We address three arguments made by DeStefano as grounds for reversal: (1) that he has a vested right to a D-12 multifamily dwelling zoning classification for his property; (2) *254 that even if he has no vested rights, the rezoning of his property to single family residential (SR-4) was arbitrary and capricious; and (3) that the City's refusal to issue building permits until DeStefano dedicated a drainage easement to the City worked a "temporary taking" of his property.
I. Vested Rights
The record reflects that DeStefano has, in effect, divided his James Island property into three segments. DeStefano has consistently held back one portion of the tract as a residual area, developing no plans for the area for construction of any kind. This area has not been divided into lots and is simply raw acreage. In a second portion of the property, multifamily dwellings have been constructed. The City has not requested removal of any of these buildings and has continued to honor building permits previously issued for this area. The third portion of DeStefano's property is hotly disputed. The record convinces us, however, as it convinced the trial judge, that DeStefano has made only those kind of preliminary improvements to the land which serve to give him flexibility to resell lots in the area to a variety of potential buyers.
"[A] landowner acquires a vested right to continue a nonconforming use already in existence at the time his property is zoned in the absence of a factual showing that the continuance of the nonconforming use would be detrimental to the public's health, safety, or welfare." Friarsgate v. Town of Irmo, 290 S.C. 266, 269, 349 S.E. (2d) 891, 893 (Ct. App. 1986) (emphasis added). Obviously, DeStefano cannot meet this test as to the residential portion of his property as no nonconforming use exists. We proceed to address the remainder of DeStefano's rezoned property.
In Friarsgate, a real estate developer invested money in drainage, grading, sewer, and water plans. The land was platted for condominiums, building permits were obtained, and foundations were begun for five units. The Town of Irmo then passed a comprehensive zoning ordinance restricting the property to single family residential construction. The Court of Appeals held that failure to obtain a substantial number of building permits at one time indicated there was no firm commitment to building the project, and, therefore, no hardship to the developer resulted from the Town of Irmo's actions.
*255 Similarly, DeStefano suffered no hardship from rezoning. He voluntarily changed his plans and sought approval for a twenty-six-lot single family plat in March 1987. While he did expend money in the layout of a road and the installation of utilities, he testified that his role in the development of the property was to prepare lots for resale. What was ultimately constructed on the lots was to be solely determined by those persons and entities to whom DeStefano sold. No building plans, specifications, or particular development scheme was made binding on any of his purchasers or prospective purchasers. At least one of his Contracts of Sale contained an express contingency that the lots be re-platted for single-family use. It appears that DeStefano was responding to what the market would bear, as opposed to pursuing a comprehensive development scheme. Therefore, we reject DeStefano's argument of vested rights to multifamily zoning in the disputed areas.
II. Arbitrary and Capricious Rezoning
DeStefano contends the City arbitrarily and capriciously rezoned his property to single family residential, pointing to unfair treatment and alleged procedural irregularities. We reject this contention.
While it is undisputed that other property owners in the general area were not rezoned to SR-4, many of these landowners were determined to have vested rights. Additionally, at this time there was a James Island study underway to develop a unified plan for traffic control, housing density, and preserving the environment. A plan was formally adopted after the rezoning; however, minutes of the Planning and Zoning Commission indicate that the Commission had already established goals for reducing housing density and redirecting multifamily development away from single family residential areas. Riverland Place is near both single family and multi-family housing areas. Because DeStefano's property also involved a sizeable amount of acreage and had a known drainage problem, it was neither arbitrary nor capricious, but a fairly debatable decision, to rezone to SR-4. Rushing v. City of Greenville, 265 S.C. 285, 217 S.E. (2d) 797 (1975) (holding the actions of a municipality will not be overturned if the government decision was "fairly debatable," but will do so only if the *256 action was so unreasonable as to impair or destroy constitutional rights). Moreover, rezoning was consistent with DeStefano's request for the twenty-six-lot plat for single family residential construction. We therefore do not find any arbitrary or capricious action on the part of the City regarding rezoning.
III. Temporary Taking
DeStefano asserts that the City's insistence upon a drainage easement before it would issue building permits of any kind amounts to a "temporary taking" of his property. He contends he is entitled to damages from the City because its refusal to grant building permits has prevented him from being able to sell or develop his property. Because he believes he will prevail with regard to either: (1) forcing the City to now issue the permits; or (2)having the City's actions declared wrongful ab initio; DeStefano seeks damages for a "temporary" taking of his property. [1] We hold DeStefano has failed to demonstrate a taking of any kind and is hence not entitled to any damages.
DeStefano concedes the City may rightfully be concerned with drainage problems in connection with zoning or the issuance of building permits. He further concedes the City may require an easement on a property owner's land to address such a drainage problem, and that it is proper for the City to condition the issuance of a building permit upon the granting of a drainage easement.[2] DeStefano takes issue only with whether there exists a drainage problem in this case justifying such an easement.[3]
*257 We hold the record amply supports the trial judge's conclusion that no taking occurred because the City was simply requiring the drainage easement to alleviate drainage difficulties, "as required by local regulation to protect subsequent purchasers in this [Riverland Place] development."[4] (Tr. 44) The trial judge made several findings of fact convincingly supporting his conclusion that a serious drainage problem existed in the area which warranted the City's actions. See, e.g., Tr. 23 (referring to the complains and petitions of neighboring residents about drainage problems); Tr. 24 (referring to the City Engineer's recommendations of actions to rectify the drainage system problems in the development). We therefore find DeStefano's contention in this regard meritless.
Lastly, DeStefano makes the argument that the City is estopped from refusing to issue any building permits because City officials allowed him to record his January 1986 plat and he relied upon this recording. Though the City admits its Deputy City Engineer and Zoning Administrator made errors which led to the recording of DeStefano's plat, the City denies that estoppel applies.
The City of Charleston Ordinances clearly demonstrate that the Deputy City Engineer and the Zoning Administrator here were acting beyond their authority in allowing the recording of the January 1986 plat because it added twelve lots to the previously submitted and approved plat. Such a change in the plat had to, by Ordinance, be approved by the City Engineer and the City Planning and Zoning Commission before recording. (Tr. 980) We have addressed this issue before, and have stated:
No estoppel can grow out of dealings with public officers of limited authority, and the doctrine of equitable estoppel cannot ordinarily be invoked to defeat a municipality in the prosecution of its public affairs because of an error
*258 or mistake of ... one of its officers or agents....
Farrow v. City Council of Charleston, 169 S.C. 373, 382, 168 S.E. 852, 855 (1933) (quoting 10 R.C.L. 707, 708). Our Court of Appeals has also addressed this issue. In South Carolina Coastal Council v. Vogel, 292 S.C. 449, 453, 357 S.E. (2d) 187, 189 (Ct. App. 1987) the Court stated:
A governmental body is not immune from the application of the doctrine of estoppel where its officers or agents act within the proper scope of their authority ... The public cannot be estopped, however, by the unauthorized or erroneous conduct or statements of its officers or agents which have been relied on by a third party to his detriment.
(Emphasis in the original.) We therefore deny DeStefano relief on this ground.
Accordingly, the judgment of the lower court is
Affirmed.
GREGORY, C.J., and HARWELL, CHANDLER and FINNEY, JJ., concur.
NOTES
[1] The United States Supreme Court recently held that, in proper circumstances, aggrieved property owners are entitled to a remedy for a State's "temporary" taking of their property. First Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed. (2d) 250 (1987).
[2] The general rule appears to be that a City or other appropriate political subdivision may condition permits for subdivision construction upon the dedication of an easement for "water supply, drainage, and sewers." 82 AM. JUR. (2d) Zoning and Planning, § 166 at 666 (1976).
[3] DeStefano cites Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed. (2d) 677 (1987) for the proposition the resolution of whether a regulation substantially advances a legitimate state interest is whether there is a reasonable nexus between the means and a legitimate state purpose. We do not view DeStefano's argument as one involving a Nollan analysis; rather, we see it as more of a factual dispute concerning whether a drainage problem exists in Riverland Place justifying the City's actions.
[4] It is clear that the trial court was referring, in its mentioning of a "local regulation," to Section 54-51 of the Ordinances of the City of Charleston, which provides in part:
No platting of land for residential use or purpose shall occur in areas subject to periodic flooding by normal tides, swamps, marshes and other undrained areas, unless suitable provision is made for satisfactory drainage....
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172 P.3d 305 (2007)
216 Or. App. 337
STATE
v.
BORTH.
Court of Appeals of Oregon.
November 28, 2007.
Affirmed Without Opinion.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 24, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-8094
(D.C. No. 2:16-CR-00020-ABJ-1)
LUIS ENRIQUE SALAZAR (D. Wyo.)
BENITEZ,
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Mr. Luis Salazar Benitez pleaded guilty to conspiracy to distribute
methamphetamine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. The
district court sentenced him to 135 months’ imprisonment, and Mr. Benitez
did not appeal. Nine months later, Mr. Benitez filed a motion to compel his
former attorney to furnish his criminal case file. The district court denied
the motion because Mr. Benitez had not cited any authority showing that
*
We have determined that oral argument would not materially help us
to decide the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Thus, we have decided the appeal based on the briefs.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But this order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
the court had the power to order such relief. Mr. Benitez filed two more
motions to compel over the following months. The district court denied
these motions, again relying on the lack of any cited authority showing the
power to order such relief.
Mr. Benitez appeals the district court’s denial of his second and third
motions to compel, arguing that the rulings violated the First, Fifth, Sixth,
and Fourteenth Amendments and 18 U.S.C. §§ 241, 242, and 1001. Because
Mr. Benitez had failed to assert a valid basis for jurisdiction, the district
court denied the motions. Technically, however, the motions should have
been “dismissed” rather than “denied.”
Before addressing the merits of Mr. Benitez’s motion, we must
ensure not only our own jurisdiction but also the district court’s. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). Federal district
courts have limited jurisdiction, which is established by the Constitution
and federal statutes and may not be expanded by judicial decree. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The burden of
establishing jurisdiction falls on Mr. Benitez. See DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 342 & n.3 (2006); see also Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840–41 (10th Cir. 2005) (noting that pro
se litigants must follow the same procedural rules that govern other
litigants).
2
The district court had jurisdiction over Mr. Benitez’s criminal case
under 18 U.S.C. § 3231. But § 3231’s grant of jurisdiction ended upon
entry of the final judgment. See United States v. Asakevich, 810 F.3d 418,
421 (6th Cir. 2016) (concluding that § 3231 does not provide jurisdiction
for a district court to consider a post-conviction motion); accord United
States v. Spaulding, 802 F.3d 1110, 1116–17 (10th Cir. 2015) (rejecting an
argument that § 3231 created jurisdiction to set aside a guilty plea after
entry of a final judgment). Mr. Benitez filed his motions to compel months
after the district court had entered a final judgment. Therefore, § 3231 did
not create jurisdiction to consider the second and third motions to compel,
and Mr. Benitez must establish jurisdiction under some other source.
Mr. Benitez does not identify any other source to support the district
court’s jurisdiction. He generally points to the Constitution as the
authority underlying his claim, but nothing in the Constitution would
empower the district court to order a third-party to produce documents in a
closed criminal case.
As the movant, Mr. Benitez bore the burden to establish the district
court’s jurisdiction over his second and third motions to compel. See p. 2,
above. He failed to carry his burden, preventing the district court from
exercising jurisdiction over the motions. See United States v. James, No.
17-1217, 2018 WL 1560251, at *3 (10th Cir. Mar. 29, 2018) (unpublished)
(concluding that the district court lacked jurisdiction to consider the
3
defendant’s post-judgment motion to compel his former attorney to turn
over records in his criminal case); United States v. Woods, No. 15-3304,
2016 WL 3457754, at *2–3 (10th Cir. June 23, 2016) (unpublished) (same).
When the district court lacks jurisdiction over a motion, the proper
disposition is “dismissal” rather than “denial.” City of Boulder v. Snyder,
396 F.2d 853, 856 (10th Cir. 1968); accord Pagants v. Blonstein, 3 F.3d
1067, 1073 (7th Cir. 1993). Thus, we have directed district courts to
“dismiss” motions seeking orders for records from their prior attorneys.
James, 2018 WL 1560251, at *4; Woods, 2016 WL 3457754, at *3.
Here, the district court recognized that it lacked jurisdiction, but
ordered “denial” rather than “dismissal.” Technically, the motions should
have been “dismissed” rather than “denied.” We therefore vacate the
district court’s rulings and remand with instructions to dismiss the second
and third motions based on a lack of jurisdiction.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4
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147 Wis.2d 328 (1989)
433 N.W.2d 243
Donald and Deena DOUGLAS, and Julie Ann Douglas, Plaintiffs-Appellants-Cross Respondents,
v.
Vernon DEWEY, d/b/a Rustic Resort, and Threshermen's Mutual Insurance Company, a Wisconsin Insurance Corporation, Defendants-Respondents-Cross Appellants.
No. 86-2086.
Supreme Court of Wisconsin.
Argued November 1, 1988.
Decided January 9, 1989.
*330 For the plaintiffs-appellants-cross respondents there were briefs by Michael S. Siddall and Herrling, Clark, Hartzheim & Siddall, Ltd., Appleton, and oral argument by Michael S. Siddall.
For the defendants-respondents-cross appellants there wbriefs by Jeffrey J. Gilson, Frederick B. *331 Kaftan, and Kaftan, Kaftan, Van Egeren, Ostrow, Gilson, Geimer & Gammeltoft, S.C., Green Bay, and oral argument by Jeffrey J. Gilson.
SHIRLEY S. ABRAHAMSON, J.
This appeal comes before the court on certification from the court of appeals. Section 809.61, Stats., 1985-86. The court of appeals certified the following question to this court: "Whether payment of the $150 filing fee under Rule 809.25(2)(a)1. is a prerequisite to filing a notice of appeal."
We conclude that a notice of appeal is filed on the day the clerk of the trial court receives the notice of appeal, whether or not the notice of appeal is accompanied by the $150 filing fee. Because the clerk of the circuit court in this case received the notice of appeal within the time period prescribed by statute, we conclude that the court of appeals obtained jurisdiction over this appeal. Accordingly, we deny the defendants' motion to dismiss the appeal for failure to file a notice of appeal in a timely manner.
The facts giving rise to the motion are not in dispute.[1] On October 1, 1986, the circuit court for *332 Menominee and Shawano counties, Thomas G. Grover, circuit judge, entered judgment after a jury *333 verdict dismissing the plaintiffs' complaint on its merits. The parties agree that the last day on which *334 the plaintiffs could initiate a timely appeal from this judgment was November 17, 1986. A notice of appeal filed on November 18, 1986, would have been filed too late.
According to the findings of fact of the circuit court, the clerk of the circuit court received in its regular mail delivery of November 12, 1986, the plaintiffs' notice of appeal, along with two checks, one for $50 as a filing fee and another for $10 as a transmittal fee. The clerk of the circuit court retained possession of the notice of appeal but did not date-stamp the notice as received or filed. The clerk of the circuit court returned the $50 check by mail to plaintiffs' attorneys on November 12, 1986, advising them that the correct filing fee is $150. On November 14, 1986, the plaintiffs' attorneys mailed two checks (the $50 check and a check for $100) to the clerk of the circuit court as a filing fee for the appeal. The clerk of the circuit court date-stamped the notice of appeal on November 18, 1986. The circuit court found that the clerk "cannot say with any degree of certainty as to when the $150 filing fee was received, but can only tell the court that it is her normal practice to filestamp the Notice of Appeal on the same date that the appeal fee was received."
We shall assume for purposes of this decision that the clerk received the $150 after November 17, 1986, the last day the appeal could be timely initiated. The question is whether the late receipt of the $150 fee on November 18, 1986, necessitates dismissal of the appeal even though the clerk of the circuit court received the notice of appeal before November 18, 1986.
*335 To determine whether this appeal was initiated within the statutory period, we must examine the statutory requirements for initiating an appeal. We look first to sec. 809.10(1)(a), Stats., 1985-86, which provides that "[a] person shall initiate an appeal by filing a notice of appeal with the clerk of the trial court in which the judgment or order appealed from was entered...." (Emphasis added.)[2] Section 809.10(1)(b) provides that "[t]he filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal." Section 809.10 does not refer to the payment of any fees.
Neither sec. 809.10, Stats., nor any other provision of chapter 809 defines the word "filing" used in sec. 809.10(1). This court has held that "[t]he notice of appeal ... shall be considered filed as of the date that the notice of appeal is actually received by the clerk [of the circuit court]." Boston Old Colony Insurance Company v. International Rectifier Corporation, 91 Wis. 2d 813, 822, 284 N.W.2d 93 (1979). Thus, if we look no further, we would hold that the notice of appeal was filed in this case when it was received by the clerk of the circuit court on November 12, 1986, well within the statutory appeal period.
The defendants contend that the plaintiffs were required to submit to the clerk of the circuit court both the notice of appeal and the $150 fee on or before November 17, 1986. The defendants rely on secs. 809.11 and 809.25, Stats., 1985-86, to support their argument. We shall examine each statute in turn.
Section 809.11(1), Stats., states that "[t]he appellant shall file with the notice of appeal the fee for *336 docketing an appeal with the court of appeals." Sec. 809.11(2) requires the clerk of the trial court to "forward to the court of appeals within 3 days of the filing of the notice of appeal, a copy of the notice of appeal, the docketing fee, and a copy of the trial court record (docket entries)...." The docketing fee mentioned in sec. 809.11(2) is not further described and is apparently the fee set forth in sec. 809.25(2)(a)1, which provides that the clerk of the court of appeals shall charge a fee of $150 for filing an appeal.
The defendants read sec. 809.10(1) and 809.11, Stats., together to mean that the clerk of the circuit court must receive both the $150 docketing fee and the notice of appeal in order for the clerk's receipt of the notice of appeal to be considered as a filing of the notice of appeal.
[1]
We do not read secs. 809.10 and 809.11, Stats., as the defendants do. We conclude that sec. 809.10 provides that the notice of appeal is the only document the clerk of the circuit court must receive within the time specified by law for initiating an appeal, in order for the court of appeals to have jurisdiction over the appeal. We hold that sec. 809.11 does not make the timely submission of the $150 docketing fee a jurisdictional requirement.
Section 809.11(1) mandates that the appellant submit the $150 docketing fee to the clerk of the circuit court but does not state that failure to submit the fee affects the appellant's timely filing of the notice of appeal. Indeed the statutory language requiring the docketing fee to be filed "with the notice of appeal" implies that the docketing fee is separate and distinct from the notice of appeal.
*337 [2]
Although sec. 809.11(2), Stats., mandates that the clerk of the circuit court "shall forward to the court of appeals within 3 days of the filing of the notice of appeal, a copy of the notice of appeal, the docketing fee, and a copy of the trial court record (docket entries) of the case," it is clear that the clerk of the circuit court must transmit only those materials in his or her possession at the time. If the clerk of the circuit court has only the notice of appeal and the docket entries, then he or she forwards only those items to the court of appeals.
[3]
On careful reading of secs. 809.10 and 809.11, Stats., we conclude that sec. 809.10 provides that an appeal to the court of appeals is initiated by filing a notice of appeal with the clerk of the circuit court. The filing of the notice of appeal, not the docketing fee, is the means by which the court of appeals is vested with jurisdiction over the appeal. Thus the plaintiffs' failure in this case to submit the $150 docketing fee along with the notice of appeal does not affect the validity of the filing of the notice of appeal or the court of appeals' jurisdiction.
The defendants argue, in the alternative, that the clerk of the circuit court's receipt of the notice of appeal in this case is not tantamount to filing, because sec. 809.25(2)(c), Stats., gives the clerk of the circuit court discretion to refuse to file the notice of appeal until the appellant pays the $150 docketing fee. The defendants assert that the clerk of the circuit court in this case exercised her discretion not to file the notice of appeal until the plaintiffs submitted the $150 docketing fee. The defendants conclude that because of the clerk's decision the notice of appeal was not *338 filed until the $150 docketing fee was paid on November 18, a day to late.
Section 809.25(2)(c), Stats., provides that "the clerk may refuse to file, docket, record, certify, or render any other service without prepayment of the fees," including the fees to be charged on the filing of an appeal.
The defendants read sec. 809.25(2)(c), Stats., as conferring discretion on the clerk of the circuit court. We disagree with this reading of the statute. We conclude that the clerk referred to in sec. 809.25(2)(c) is the clerk of the court of appeals, not the clerk of the circuit court.
Chapter 809 sets forth the rules of appellate practice. References to the "court" in chapter 809 are defined as being to the court of appeals or the supreme court, not to the circuit court. See Sec. 809.01(4), Stats., 1985-86. References to the "clerk" or the "clerk of court" in chapter 809 therefore are to the clerk of the court of appeals or to the clerk of the supreme court, not to the clerk of the circuit court. When a reference is made in chapter 809 to the clerk of the circuit court, the phrase "clerk of the trial court" is used. See, e.g., sec. 809.10(1)(a).
[4]
Section 809.25(2)(a), Stats., makes clear that the $150 filing fee is a fee the clerk of the court of appeals charges the appellant.[3] Consequently, the reference in sec. 809.25(2)(c) to "the clerk" refusing to file, docket, record, certify or render a service without prepayment *339 of the fee can only be interpreted as referring to the clerk of the court of appeals, not the clerk of the circuit court.[4]
[5]
We therefore conclude that under the plain language of sec. 809.25(2)(c), Stats., sec. 809.25(2)(c) does not grant the clerk of the circuit court discretion to refuse to file a notice of appeal when an appellant fails to pay the required $150 docketing fee.
We must consider one other statute relevant to the question of whether the clerk of the circuit court has discretion not to file the notice of appeal when an appellant does not submit the $150 fee along with the notice of appeal.
Sec. 59.42(1), Stats., 1985-86, provides that "[t]he clerk of the circuit court shall collect the fees prescribed in ss. 814.60 to 814.63." (Emphasis added.) It further states that the clerk of the circuit court "may refuse to accept any paper for filing or recording until the fee prescribed in subch. II of ch. 814 or any applicable statute is paid."
Sections 814.60 to 814.63, Stats., 1985-86, do not refer to fees for filing appeals. Sec. 814.64 does. Sec. 814.64 is part of subchapter II of chapter 814. Sec. 814.64 states that "[t]he fees on appeal to the court of appeals and the supreme court are prescribed in s. *340 809.25(2)." Sec. 814.64 does not prescribe a fee for appeal; it merely serves as a cross-reference to sec. 809.25(2), Stats. Sec. 809.25(2), not sec. 814.64, prescribes the fee for filing a notice of appeal. Reading sec. 59.42(1), Stats., together with sec. 814.64, we conclude that sec. 59.42(1) does not authorize the clerk of the circuit court to refuse to accept a notice of appeal for filing until the $150 docketing fee is paid.
Our interpretation of sec. 59.42(1), Stats., is supported by the fact that the $150 fee belongs to the clerk of the court of appeals, not the clerk of the circuit court. The clerk of the circuit court merely acts as a conduit, transmitting the $150 to the clerk of the court of appeals. Furthermore, interpreting sec. 59.42(1) as granting a clerk of the circuit court discretion to refuse to file a notice of appeal on the non-payment of the $150 docketing fee would mean that the time of filing of notices of appeal and of initiating appeals would differ from one case to the other and from one county to the other. We do not believe the legislature intended to adopt such a rule. We believe the legislature intended a uniform appeal procedure across the state.
[6]
The certification memorandum filed by the court of appeals in this case states that several clerks of circuit courts, unlike the clerk of the circuit court in this case, accept notices of appeal for filing without the $150 filing fee and that the clerk of the court of appeals routinely views these appeals as being properly initiated upon the filing of the notice of appeal with the clerk of the circuit court. The clerk of the court of appeals then bills attorneys and law firms for the $150 *341 filing fee. This practice is in conformity with our holding in this case.[5]
[7]
When we examine the language of sec. 59.42(1), Stats., and consider that the $150 fee is paid to the clerk of the court of appeals (not the clerk of the circuit court) and that there is a need for a uniform rule across the state for filing notices of appeals and initiating appeals, we conclude that sec. 59.42(1) does not confer discretion upon the clerk of the circuit court to refuse to file a notice of appeal when the $150 fee is not paid. We conclude that the court of appeals obtains jurisdiction over an appeal by the filing of a timely notice of appeal with the clerk of the circuit court, whether or not the $150 fee accompanies the notice of appeal.
We add one further comment. This case should be compared with Rome v. Betz, 120 Wis. 2d 528, 355 N.W.2d 844 (Ct. App. 1984). In Rome, the clerk of the circuit court received a notice of appeal and the docketing fee but did not receive the $10 transmittal fee required by secs. 59.42 and 814.61(9), Stats. The court of appeals held that the clerk of the circuit court abused its discretion by not accepting the notice of appeal for filing. "We reach that conclusion," wrote the court of appeals, "because the clerk runs no risk whatever by accepting the notice of appeal for filing *342 before the $10 forwarding fee and postage are paid. The clerk may refuse to assemble the record for forwarding to the court of appeals and may refuse to forward the record after it has been assembled until the $10 and postage have been paid." 120 Wis. 2d at 530. In the case at bar, the clerk of the circuit court received the $10 transmittal fee when she received the notice of appeal, but she did not receive the $150 docketing fee required by sec. 809.25(2)(a)1, Stats.
[8]
Taken together, the decisions in Rome and in this case establish the rule that the clerk of the circuit court may not refuse to accept a notice of appeal merely because the party submitting the notice fails to pay the transmittal fee or the docket fee.
[9]
For the reasons set forth, we hold that the notice of appeal in this case was filed on November 12, 1986, when the clerk of the circuit court received the notice of appeal. The filing of the timely notice of appeal gave the court of appeals jurisdiction over the appeal, and we therefore deny the defendants' motion to dismiss the appeal. The cause is remanded to the court of appeals.
By the Court.The motion to dismiss the appeal is denied.
NOTES
[1] When the defendants filed a motion in the court of appeals to dismiss the appeal for plaintiffs' failure to file a timely notice of appeal, the court of appeals remanded the matter to the circuit court for findings of fact regarding the plaintiffs' processing of the appeal. The circuit court found the following facts relating to the plaintiffs' processing the appeal to the court of appeals:
1. A Notice of Appeal and a $50 check was mailed to the Clerk of Courts for Menominee-Shawano Counties on November 10, 1986, by attorneys for the plaintiff.
2. There was no mail on Tuesday, November 11th, 1986, and the Clerk of Circuit Court received said Notice and $50 check on Wednesday, November 12th, 1986.
3. The Deputy Clerk, Barbara Schroeder, prepared a message to plaintiff's attorney on Wednesday, November 12th, 1986, which is the top part of the plaintiff's Exhibit one received in evidence for the purpose of this hearing and most likely mailed that notice the same day advising plaintiff s attorneys that they had submitted the wrong appeal fee.
4. Plaintiffs attorneys received the message from the Deputy Clerk and the $50 check on Friday, November 14th, 1986, and most likely on that same day returned the $50 check along with another check for $100 to the Clerk of the Court's Office.
5. In the normal course of doing business the mail from the plaintiffs law firm would have been delivered to the Post Office in Appleton, Wisconsin, by 6:00 p.m. on Friday, November 14th, 1986.
6. The letter in question had left the desk of Attorney Brickner's secretary prior to Attorney Brickner's leaving the office on Friday, November 14th, 1986, and that in the normal course of doing business her secretary would have taken that letter along with the other mail to a central location in the law firm where it would then be gathered with the mail and delivered to the Post Office by 6:00 p.m.
7. In the normal course of doing business mail received by the Post Office in Appleton, Wisconsin, by 7:15 p.m. would be delivered to the Post Office in the City of Shawano in the next day's delivery.
8. The Clerk of Courts did receive the two checks but can not [sic] state with absolute certainty when said checks were received.
9. Deputy Barbara Schroeder would normally open the mail and said mail would normally be received sometime between 10:30 a.m. and noon on Mondays, and sometimes in November it didn't come until mid-afternoon.
10. Monday, November 10, 1986, would be a double-mail day because of no delivery on Saturday, and Wednesday, November 12th, would be a double mail day because of the holiday on November 11th. Also, Monday, November 17th, 1986, would have been a double mail day. On these double mail days the Clerk's Office would have received twice as much mail as the other days of the week.
11. Upon receiving a fee for filing an appeal the normal course of business for the Clerk of Court's Office would be for Ms. Schroeder to pull the file and send the fee along with the Notice of Appeal to the Court of Appeals on the same day that the Notice of Appeal and fee was received by the clerk of Court's Office. The Clerk normally date stamps a document when she takes it out of the envelope, but she doesn't date stamp checks.
12. In this case, upon receipt of the correct filing fee, Deputy Schroeder had to pull the file to retrieve the Notice of Appeal which had been previously filed and receipted the $10 transmittal fee, which had been previously received by the Clerk of Courts along with the Notice of Appeal and $50 check on Wednesday, November 12, 1986.
13. In the normal course of business the Clerk of Courts' Office would filestamp mail received on the same date of receipt, but on some occasions the Deputy Clerk would be unable to do so because of other responsibilities that required more immediate attention.
14. The plaintiffs attorneys' letter of November 10th, 1986, which accompanied the Notice of Appeal, the $50 filing fee, and the $10 transmittal fee, is filestamped November 18th, 1986, as is the Notice of Appeal.
15. Deputy Schroeder cannot say with any degree of certainty as to when the $150 filing fee was received, but can only tell the court that it is her normal practice to filestamp the Notice of Appeal on the same date that the appeal fee was received.
16. It is neither clear and convincing, nor is it undisputed and uncontroverted that the proper filing fee was received by the Clerk of Courts on November 17, 1986. It appears likely that said fee was received on November 18, 1986.
[2] Section 809.10(1)(b), Stats., provides that "[t]he notice of appeal must be filed within the time specified by law." Sec. 808.04(1), Stats., 1985-86, sets forth the time for initiating an appeal.
[3] Section 809.25(2)(a), Stats., provides that "[t]he clerk of the court [defined in sec. 809.11(4) as the court of appeals or the supreme court] shall charge the following fees: 1. For filing an appeal, cross-appeal, petition for review, petition to bypass, or other proceeding, $150."
[4] Our conclusion that sec. 809.25(2)(c), Stats., refers to the clerk of the court of appeals or the supreme court, and not to the clerk of the circuit court, is further bolstered by examining sec. 251.90, Stats. 1975, the predecessor of sec. 809.25(2)(c). Section 251.90(1) governed appeals to the Wisconsin Supreme Court before creation of the court of appeals. It provided that "the fees to be charged by the clerk of this court [the supreme court] are as follows: (a) For filing and docketing each case on appeal, a writ or error, or any other proceeding, $25. ..."
[5] If an appellant fails to pay the filing fee, the appeal may be dismissed. Section 809.83(2), Stats., 1985-86, provides that " [f]ailure of a person to comply with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate."
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Affirmed and Memorandum Opinion filed November 24, 2004
Affirmed and Memorandum Opinion
filed November 24, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-00959-CR
____________
CHRISTOPHER DOUGLAS WOOLVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
___________________________________________________
On Appeal from the 178th District Court
Harris County,
Texas
Trial Court Cause No. 895,909
___________________________________________________
M E M O R A N D U M O P I N I O N
Appellant entered a plea of not
guilty to the offense of retaliation. He
was convicted, and the jury sentenced him to sixty years in the Institutional
Division of the Texas Department of Criminal Justice. In three issues, he contends the trial court
erred in admitting evidence of extraneous offenses and hearsay. We affirm.
Background
In the summer of 2001, Mona
Scarbrough and appellant were engaged in an extra-marital affair. When Mona attempted to end the affair,
appellant became aggressive and threatened Mona and her family. After receiving several harassing telephone
calls, Mona bought a tape-recorder for her telephone and began to record
appellant=s calls. Harold Scarbrough, Mona=s
husband, worked as a service technician for Halliburton in Houston, Texas. On September 11, 2001, appellant telephoned
the Halliburton office in Houston
and requested that Harold be terminated from his employment. Appellant threatened to Ablow up@ the
Halliburton building and kill Harold Scarbrough or his wife, children, and
co-workers. On September 25, 2001,
appellant was convicted of making a misdemeanor terroristic threat and
sentenced to 120 days in the Harris County Jail.
On November 10, 2001, after being
released from jail, appellant again called the Halliburton offices. Because November 10th was a weekend day,
Nicole Sheeter, a receptionist with the answering service, answered the
call. Sheeter testified that the caller
said he had recently been released from jail for harassment, that he had been
sexually assaulted in jail, had stitches in his rectal area, and was going to
kill everyone concerned. On Monday
morning, Sheeter reported the call to the sheriff=s
department. She was able to identify
appellant=s voice from Mona=s tapes
of appellant=s harassing telephone calls.
Issues and Analysis
In his first two issues,
appellant challenges the trial court=s
admission of extraneous offense evidence.
Evidence of other
crimes is not admissible to prove a defendant=s character in order to show that he
acted in conformity therewith. Tex. R. Evid. 404(b). However, it may be admissible for other
purposes, such as proof of motive, intent, knowledge, or absence of mistake or
accident. Id.
When a party introduces evidence of other crimes for a purpose other
than character conformity, the evidence must be relevant. See Mozon v. State, 991 S.W.2d 841,
846 (Tex. Crim. App. 1999). The standard
of review on the admission of extraneous offenses is abuse of discretion. Lane v. State, 933 S.W.2d 504, 519 (Tex.
Crim. App. 1996).
Did the trial court err in admitting
details of the September 11, 2001, call?
In his first issue, appellant contends the trial court erred
in admitting the details of the September 11, 2001, telephone call. Appellant was first convicted of making a
misdemeanor terroristic threat as a result of the call he made on that
date. Over appellant=s objection, Harold Scarborough
testified that appellant called the Halliburton offices, threatened to blow up
the building, and kill Harold or his wife, children, and co-workers. Appellant contends the evidence of the actual
threats made during the phone call was not admissible under Texas Rules of
Evidence 403 and 404(b).
Admissibility of an extraneous offense hinges on the
relevancy of the evidence to a fact of consequence in the case. Rankin v. State, 974 S.W.2d 707, 709
(Tex. Crim. App. 1996). Extraneous
offense evidence is admissible if the proponent persuades the trial court the
extraneous evidence (1) tends to establish some elemental fact; (2) tends to
establish some evidentiary fact, such as intent, leading inferentially to an
elemental fact; or (3) rebuts a defensive theory. Santellan v. State, 939 S.W.2d 155, 168B69 (Tex. Crim. App. 1997). The proponent of the evidence must show that
evidence has relevance apart from showing character conformity. Rankin, 974 S.W.2d. at 718; Montgomery
v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh=g).
Because the offense of retaliation requires proof of a culpable
mental state of knowingly or intentionally, the evidence of extraneous offenses
is admissible to prove the appellant made the initial threats
intentionally. Sewell v. State,
629 S.W.2d 42, 46 (Tex. Crim. App. 1982); see also Tex. Pen. Code Ann. ' 36.06 (Vernon Supp. 2004). Here, the first threat was sufficiently
similar to that charged in this case to render it admissible on the issue of
intent. The threats were made at the
same location, to the same person, close in time, and for the similar purpose
of punishing the threatened individual.
Because the evidence was properly admitted to show intent, the trial
court did not violate Rule 404(b) in admitting the evidence.
Appellant further objected under
Rule of Evidence 403 that the prejudicial effect of the details of the
September 11th call outweighed its probative value. Although admissible, evidence may be excluded
if its relevance is outweighed by a danger that it will unfairly prejudice, confuse,
or mislead the jury, if its inclusion will result in undue delay, or if it is
needlessly cumulative. Tex. R. Evid. 403. Because Rule 403 favors admissibility of
relevant evidence, the presumption is that relevant evidence will be more
probative than prejudicial. Montgomery v.
State, 810 S.W.2d at 389. The burden
is on the opponent of the proffered evidence to demonstrate the negative
attributes of the evidence and to show how those negative attributes
substantially outweigh the probative value of the evidence. Goldberg v. State, 95 S.W.3d 345, 367
(Tex. App.CHouston [1st Dist.] 2000, pet.
ref=d), cert.
denied, 124 S. Ct. 1436 (2004).
In determining whether the
prejudice of admitting evidence outweighs its probative value, we consider the
following factors:
(1) how compellingly the evidence makes a
fact of consequence more or less probable;
(2) the potential the evidence has to impress
the jury in an irrational, but indelible way;
(3) the time the proponent will need to
develop the evidence, during which the jury will be distracted from
consideration of the indicted offense; and
(4) the proponent=s need for the evidence to
prove a fact of consequence.
Manning v. State, 114
S.W.3d 922, 926 (Tex.
Crim. App. 2003).
The evidence of the September
11th call is probative evidence of the offense for which appellant sought
retaliation and evidence of his intent to follow through on his threat. As to whether the jury would be impressed in
an indelible way, the threat was similar to the threat for which appellant was
convicted of retaliation. The fact that
appellant chose September 11, 2001, to make his threat was not overly
emphasized either in Harold=s
testimony or in the prosecutor=s closing
argument. The time needed to develop the
evidence was minimal; therefore, the jury was not distracted from the indicted
offense. Finally, the evidence was
necessary to show why appellant had been incarcerated and what had instigated
his retaliation. After reviewing the
appropriate factors, we conclude there is not a clear disparity between the
degree of prejudice of the September 11th call and its probative value. We overrule appellant=s first
issue.
Did the
trial court err in admitting evidence of previous threats on audiotape?
In his second issue, appellant
contends the trial court erred in admitting two audiotapes of threats made by
appellant to Mona Scarbrough. Mona
testified that prior to the September 11th call to Halliburton, appellant had
called her home repeatedly and threatened her and her family. As a result, Mona began to record appellant=s
telephone calls to her home. Two of the
threatening calls were played for the jury for the purpose of identifying
appellant=s voice. Appellant objected that the entire tapes
should not be played because they contained extraneous offenses that were not
admissible under Texas Rule of Evidence 404(b).
Appellant did not object under Rule 403.
The trial court overruled the objection, but instructed the jury to
consider the audiotape only for the purpose of voice identification.
Extraneous offenses may be
admissible to show identity when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519
(Tex. Crim. App. 1996). Raising the
issue of identity does not automatically render evidence of an extraneous
offense admissible. Id.
For such evidence to be admissible, the extraneous offense must be so
similar to the offense charged that both offenses are marked as the accused=s
handiwork. Id.
Sufficient similarity may be shown by proximity in time and place or by
a common mode of committing the offenses.
Harvey v. State, 3 S.W.3d 170, 175B76 (Tex.
App.CHouston
[14th Dist.] 1999, pet. ref=d).
In this case, identity was an
issue because appellant did not identify himself to the answering service when
he made the November 10th call. The
audiotapes were made shortly before the September 11th call, and the threats
were similar to those made on September 11th and on November 10th. The proximity in time and place, the common
mode of committing the offenses, and the circumstances surrounding the offenses
are sufficiently similar for the extraneous offenses on the audiotapes to be
relevant to the issue of identity.
Further, the trial court timely instructed the jury not to consider the
audiotape for any purpose other than identity, which lessened any prejudicial
effect of the evidence. See Robinson
v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985). We overrule appellant=s second
issue.
Did the
trial court err in admitting hearsay testimony through Sergeant Moore?
In his third issue, appellant
contends the trial court erred in admitting inadmissible hearsay through
Sergeant Moore=s testimony. Sergeant Moore testified that Nicole Sheeter
reported the details of the November 10th call to him. Over objection, Moore was permitted to testify to the details
of the call. Nicole Sheeter testified at
trial to the details of appellant=s threat
on November 10, 2001.
Hearsay is a statement, other than one made by the declarant
while testifying at trial or hearing, offered in evidence to prove the truth of
the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible except as provided
by statute or the rules of evidence or by other rules prescribed pursuant to
statutory authority. Tex. R. Evid. 802; Long v. State,
800 S.W.2d 545, 547B48 (Tex. Crim. App. 1990).
We conclude Sergeant Moore=s testimony about what Sheeter told
him was hearsay that does not fall within an exception. Therefore, the trial court abused its
discretion in admitting Sergeant Moore=s testimony over objection.
A violation of evidentiary rules that results in the
erroneous admission of evidence is non‑constitutional error under Rule
44.2(b). Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). Any
non-constitutional error that does not affect substantial rights must be
disregarded. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1,
4 (Tex. Crim. App. 2001). A substantial
right is affected when the error had a substantial and injurious effect or
influence in determining the jury=s verdict. King, 953 S.W.2d at 27. The improper admission of evidence does not
constitute reversible error if the same facts are proved by other properly
admitted evidence. See Brooks v.
State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error
in the admission of hearsay testimony was harmless in light of other properly
admitted evidence proving same fact).
Sheeter=s
testimony duplicated Sergeant Moore=s
testimony with regard to the details of appellant=s threat
of retaliation. Because other testimony
was admitted that proved the same fact, the erroneous admission of hearsay
testimony is harmless. We overrule
appellant=s third issue.
We affirm the trial court=s
judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed November 24, 2004.
Panel consists of Justices Anderson, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
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940 F.2d 99
John M. WHITESIDE, Plaintiff-Appellant,v.TELTECH CORPORATION; Telic Corporation; National TelephoneServices, Incorporated, Defendants-Appellees.John WHITESIDE, Plaintiff-Appellant,v.Ronald J. HAAN, Defendant-Appellee.John WHITESIDE, Plaintiff-Appellant,v.TELTECH CORPORATION; Telic Corporation; National TelephoneServices, Incorporated, Defendants-Appellees.
Nos. 90-3144, 90-3145 and 90-3164.
United States Court of Appeals,Fourth Circuit.
Argued April 10, 1991.Decided July 31, 1991.
Loren Kieve, argued (Ann M. Ashton, Charles R. Monroe, Jr., on brief), Debevoise & Plimpton, Washington, D.C., for plaintiff-appellant.
Lawrence Howard Schwartz, argued (Nicholas H. Hantzes, Karen M. Simonek, on brief), Cooter & Gell, Washington, D.C., for defendants-appellees.
Before WILKINSON and NIEMEYER, Circuit Judges, and MICHAEL, District Judge for the Western District of Virginia, sitting by designation.
OPINION
NIEMEYER, Circuit Judge:
1
This appeal raises questions about rights created by the Federal Arbitration Act (FAA), 9 U.S.C. Sec. 1 et seq. (1988), in the context of an employment dispute. The issue is whether the district court improperly refused to hear a federal suit to compel arbitration when the dispute sought to be arbitrated is the subject of a pending state case. Because the district court failed to recognize its independent duty to adjudicate a claim prosecuted under the FAA, we reverse and remand to permit it to determine whether the dispute between the parties is arbitrable. Although the appellant has also requested that we review the nature of the dispute and compel arbitration, we decline the invitation so that the district court, in the first instance, can make that determination.
2
* John M. Whiteside entered into a written employment agreement with Teltech Corporation to serve as senior vice president of Teltech and as a member of the board of directors of two subsidiary corporations, Telic Corporation and National Telephone Services, Inc. (NTS). Teltech's obligations under the employment agreement were guaranteed by Telic and NTS, and the agreement was signed on behalf of Teltech, Telic and NTS by Ronald J. Haan. Haan was the chairman of the board, president and sole shareholder of Teltech and the chief executive officer, president, and majority shareholder of Telic.
3
A fracture in the employment relationship between Whiteside and Teltech prompted Whiteside to seek damages through arbitration, as provided for in the employment agreement. When Teltech, Telic and NTS resisted arbitration, Whiteside filed his first federal action and the district court compelled the arbitration. Following an arbitration award for Whiteside, the district court entered a confirming judgment in favor of Whiteside in the amount of $564,139.51. After this judgment was paid and marked satisfied, Telic and Haan filed suit against Whiteside in a state court in Loudoun County, Virginia, alleging that Whiteside's conduct, while employed as vice president of Teltech, damaged them. That suit stated counts for breach of fiduciary duty, tortious interference with contractual relationship, defamation, and conspiracy to injure another in trade, business or profession.
4
Believing that the issues raised in the state court proceedings should have been arbitrated in the just-completed arbitration or, alternatively, should be arbitrated in a new arbitration because they "arise out of" or "relate to" the employment agreement between Whiteside and Teltech, Whiteside filed a motion in the federal action, which had been closed by an order of satisfaction, seeking an order to enjoin the state suit and to compel a second arbitration. The district court denied the motion to enjoin the state case and, on the motion to compel arbitration, stated:
5
As far as I am concerned, my ruling on the injunction takes care of your motion on arbitration. I mean, if you have got a separate motion for me to just pick up a case in Loudoun County and send it to arbitration, I am not even going to take jurisdiction here to do anything about the injunction, much less pick up some state case and send it to arbitration.
6
* * * * * *
7
I am certainly not going to let you file a suit here by motion. I am just not going to do that. I don't know what remedies you have.
8
J.A. 166-69.
9
Concerned about the district court's comment that it would not treat his motion as the equivalent of a new law suit, Whiteside filed a second action in the federal district court, relying on diversity jurisdiction, in which he again sought to compel arbitration under the FAA. In the hearing on the motion to compel arbitration, the court again denied the motion, relying on the reasons it gave in denying the motion that was filed in the first federal suit. The court stated:
10
I have already sent the case to arbitration. It was already here and I sent it, sent the whole thing, didn't I?
11
* * * * * *
12
They arbitrate, the arbiters made an award, I have entered a judgment, and this thing is over as far as this case is concerned.
13
* * * * * *
14
Now somebody is in another court raising issues which you say have already been before arbitration, they were the subject of this suit, they either were dealt with or should have been dealt with, it is res judicata and, therefore, they shouldn't be in Loudoun County. But I am not the one to determine that. Whoever is hearing this suit up in Loudoun County has got to be the one to hear that.
15
J.A. 177-78 (emphasis added). When counsel for Whiteside assured the court that Whiteside was seeking no relief on the issues pending in Loudoun County but rather was seeking remedies in federal court under the FAA, the court denied his relief saying, "I haven't got any authority." J.A. 181.
16
From the court's denial of the motions to compel arbitration, Whiteside appealed the refusals to compel arbitration in both the closed federal action (cases 90-3144 and 90-3145) and the second federal action filed under the FAA (case 90-3164).
II
17
In denying the motions to compel arbitration, the court believed either that the plaintiff did not have a separate federal right under the FAA to bring suit, or that it should stay its hand under a notion of abstention in favor of the pending state court case. In either case, we find error.
18
The purpose for enacting the FAA was to assure judicial enforcement of privately made agreements to arbitrate by placing them "upon the same footing as other contracts." Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985) (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess. 1 (1924)); see also Gilmer v. Interstate/Johnson Lane Corp., --- U.S. ----, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991). Prior to enactment of the FAA, courts were hostile to the enforcement of arbitration provisions, following a long-standing common law rule which evolved from the judiciary's jealous refusals to oust courts of jurisdiction in favor of other dispute resolution mechanisms. Dean Witter, 470 U.S. at 220 n. 6, 105 S.Ct. at 1242 n. 6. The Act's purpose is thus fulfilled at its core by the declaration in Sec. 2 that a written agreement to arbitrate is "valid, irrevocable, and enforceable" and the sanction provided in Sec. 4 for specific enforcement of the agreement. 9 U.S.C. Secs. 2 & 4 (1988).
19
The FAA creates a separate federal cause of action for enforcement of agreements within its scope, even if the underlying dispute depends entirely on state law. It does not, however, mandate arbitration for all disputes simply when arbitration is demanded. Rather, it provides for the enforcement of agreements in which the parties have agreed to arbitration. Although the FAA manifests a liberal federal policy favoring arbitration agreements and "questions of arbitrability must be addressed with a healthy regard" for this policy, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), the Act leaves interpretation of an agreement to the application of common law principles of contract law. Perry v. Thomas, 482 U.S. 483, 493 n. 9, 107 S.Ct. 2520, 2527 n. 9, 96 L.Ed.2d 426 (1987). Doubts on the issue of arbitrability, however, are to be resolved in favor of the policy favoring arbitration. Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. at 941-42.
20
To state a claim to compel arbitration under the FAA, the plaintiff must allege (1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute. While state courts and federal courts have a concurrent obligation to resolve FAA claims, Moses H. Cone, 460 U.S. at 25-26 & n. 34, 103 S.Ct. at 942 & n. 34, the FAA does not provide a basis for federalquestion jurisdiction for bringing a suit under the Act in federal court. See 9 U.S.C. Sec. 4 (1988). Although it is an anomaly for a statute that creates federal substantive rights not to form the basis of federal question jurisdiction, subject matter jurisdiction for an FAA claim in federal court must rest on some basis independent of the FAA. See Moses H. Cone, 460 U.S. at 25 n. 32, 103 S.Ct. at 942 n. 32.
21
In this case the district court had jurisdiction by reason of diversity of citizenship, but it was apparently distracted by the facts that (1) an arbitration under Whiteside's employment agreement had already been ordered once and completed, and (2) the dispute for which arbitration is sought a second time is the subject of a state court action. In ruling on the motion to compel arbitration in the second federal action, the court stated that because of the first arbitration, "this thing is over as far as this case is concerned." And, also believing that the arbitration issue could be resolved by the state court, the district court stated that it was "not the one" to make the determination of arbitrability and that it lacked "authority" or jurisdiction to proceed in the federal court. It failed to recognize that the FAA provides a federal cause of action which calls upon the court to decide whether the dispute is covered by a written arbitration agreement. This issue is different from that presented when resolving the dispute on the merits. When deciding arbitrability, the court only determines whether, as a matter of contract between the parties, the underlying dispute should be resolved in court or by arbitration. The district court erroneously failed to resolve this question as a matter of federal law, separate from the issue on the merits. See Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 939 (arbitrability issue is easily severable from the merits of the underlying dispute).
22
Although not articulated specifically, the district court's reluctance to proceed with the second federal case appears also to have been attributable to a notion of abstention in favor of permitting the state, where the dispute on the merits was pending, to resolve the issue of arbitrability. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We have already held, however, that absent exceptional circumstances, a federal district court has "no right to stay the federal proceedings" brought under the FAA even though a similar action between the parties was pending in the state court. In re Mercury Constr. Corp., 656 F.2d 933, 946 (4th Cir.) (en banc), reh. den., 664 F.2d 936 (1981), aff'd sub nom. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). In its affirming decision, the Supreme Court pointed out the first principle of abstention:
23
"Abstention from the exercise of federal jurisdiction is the exception, not the rule. 'The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' "
24
Moses Cone Hosp., 460 U.S. at 14, 103 S.Ct. at 936 (quoting Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244 (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1063, 3 L.Ed.2d 1163 (1959))).
25
No exceptional circumstance is presented here, and the district court has the duty to proceed with the case that is within its jurisdiction. In concluding that the district court must decide the question under federal law whether the dispute is arbitrable, we express no view on the issue of whether, as a matter of contract law, the dispute presented in the state court litigation is arbitrable. We reverse the judgment in case number 90-3164 and remand it for further proceedings. In view of our ruling in that case and also the absence in cases 90-3144 and 90-3145 of any showing why they should be reopened under Fed.R.Civ.P. 60(b), the ruling of the district court in refusing to consider the motion to compel arbitration filed in cases 90-3144 and 90-3145 is affirmed.
26
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
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25 F.Supp.2d 1347 (1997)
HUMANA MEDICAL PLAN, INC., Plaintiff,
v.
Elio VALDEZ, as Personal Representative of the Estate of Ernesto Valdez, deceased, Defendant.
No. 95-1577-CIV-T-25C.
United States District Court, M.D. Florida, Tampa Division.
March 31, 1997.
Order on Motion for Clarification, March 6, 1998.
*1348 Clark Wade Yeakle, II, Yeakle & Watson, P.A., St. Petersburg, for Humana Medical Plan, Inc., plaintiffs.
Robert L. Vessel, Moffitt & Vessel, Tampa, FL, for Elio Valdez.
ORDER
ADAMS, District Judge.
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss (Dkt.3), Defendant's Motion for Summary Judgment (Dkt.9), Defendant's Supplement thereto (Dkt.12), and Plaintiff's Motion for Summary Judgment (Dkt.15), and, having considered same and the Parties' memoranda on the issues raised thereby, the Court makes the following findings of fact and conclusions of law:
I. INTRODUCTION
a. Undisputed Background Facts
Plaintiff is a health management organization ("HMO") federally licensed to provide replacement Medicare. Beginning in 1987 until his death, Decedent, Ernesto Valdez, was a member of Plaintiff's Medicare HMO by Plaintiff's acquisition of another health plan in June of 1987. Between April 19, 1994 and July 1, 1994, Plaintiff paid Decedent's medical and related benefits of $100,125.31, stemming from alleged medical malpractice and negligent care provided by Decedent's nursing home facility. Decedent's estate sued the nursing home in state court and settled its wrongful death claim for $170,000.00 on or about June 21, 1995. Defendant asserts that it agreed on that settlement amount because, at the time, the nursing home's sole liability insurer was handling two other claims on the same policy (in effect from July 23, 1993 through July 23, 1994) that were more egregious and, therefore, could have consumed the entire $1,000,000.00 in coverage.[1]
Prior to settlement and pursuant to Section 768.76, Florida Statutes, Defendant, via its counsel, gave notice to Plaintiff of Plaintiff's potential lien on December 6, 1994. On December 30, 1994, Plaintiff responded to Defendant's notice letter, stating:
In accordance with the requirements of Florida Statutes 768.76, you are hereby notified that the above health plan is a collateral source payor on behalf of the above patient and hereby asserts its rights of subrogation and/or reimbursement.
See Composite Exhibit "4," attached to Defendant's Motion for Summary Judgment. Also on December 30, 1994 Plaintiff sent Defendant's counsel another letter, stating:
The contract between the Health Plan and your client provides that the Health Plan has subrogation and/or recovery rights as an insurer. In this connection, the Health Plan also has the right to be reimbursed by your client for its costs of providing medical care in the event that any compensation is received by your client.
Id. Thus, prior to settlement with the nursing home in June of 1995, Defendant and its counsel were aware that Plaintiff had paid certain medical benefits for Decedent, as reflected by a Consolidated Statement of Benefits, dated March 13, 1995, and that Plaintiff intended to seek subrogation and/or reimbursement.
Plaintiff brings this declaratory action, claiming a federal right of subrogation lien pursuant to 42 C.F.R. Sections 417.528 and 411.37. Defendant argues that Plaintiff is estopped from pursuing a lien under federal law because of its actions and representations, and that Florida equitable subrogation law is not pre-empted by federal Medicare insurance lien law. By agreement, Defendant and Plaintiff have placed a joint check into an account pending the outcome of this case.
*1349 b. Summary Judgment Standards
The grant of Summary Judgment is only proper if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file 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. Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R.Civ.P. 56. The moving party satisfies its burden by showing an absence of evidence to support an essential element of the nonmoving party's case. Id. Once a party properly makes a motion for summary judgment by demonstrating to the district court the absence of a genuine material fact, whether or not accompanied by affidavits or other proof, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e); Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11th Cir.1990)).
The standard for summary judgment mirrors the standard for a directed verdict. Hoffman, 912 F.2d at 1383. Thus, a dispute about a material fact is genuine, and summary judgment is inappropriate, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The Court must examine the evidence in light of the relevant substantive law when identifying which facts are material. Id.
The Court must view all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party's favor. Hoffman, 912 F.2d at 1383. If the Court finds, under the relevant standards, that reasonable jurors could find a verdict for the nonmoving party since a disputed factual issue exists, summary judgment should be denied. Id. The Court may not decide a factual dispute. Fernandez v. Bankers National Life Ins. Co., 906 F.2d at 559, 564 (11th Cir.1990). If a factual issue is present, the Court must deny summary judgment and proceed to trial. Id.
II. LAW AND DISCUSSION
a. Section 768.76
Plaintiff alleges federal question jurisdiction in this declaratory action on the ground that federal laws governing Medicare insurance entitle it to more favorable terms than those set out in Section 768.76, Florida Statutes, the state law governing insurance collateral sources and subrogation rights. Contending that federal pre-emption is not present, Defendant argues that neither 42 U.S.C. 1395mm (e)(4), nor C.F.R. Section 417.528, conflict with Section 768.76.
However, a review of Section 768.76 shows that a federal pre-emption analysis is unnecessary because Florida law expressly defers to federal Medicare laws that pertain to collateral sources. Section 768.76 defines "collateral sources" as payments made pursuant to the United States Social Security Act, "except Title XVIII and Title XIX." Further, Section 768.76 expressly states in relevant part:
Notwithstanding any other provision of this section benefits received under Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff's recovery... shall not be considered a collateral source.
Id., at Subsection (2)(b). In other words, Medicare payments are not collateral sources under Florida's Section 768.76 and, therefore, Defendant cannot rely on the Section in determining Plaintiff's Medicare lien rights. Id.; see also Cronin v. Washington National Insurance Co., 980 F.2d 663, 672 (11th Cir. 1993)("The statute specifically exempts Medicaid [and Medicare] payments from consideration as collateral sources...").
b. Waiver and Estoppel
Having determined that Plaintiff's ability to recoup Medicare benefits paid to Decedent is exclusively governed by federal law, Defendant's affirmative defenses of waiver and estoppel must be examined. Defendant argues that Plaintiff waived its right to pursue recoupment under federal law because Plaintiff sought subrogation under Florida law, Section 768.76, and Defendant *1350 reasonably relied on Plaintiff's representations regarding same. Specifically, on December 30, 1994, Plaintiff responded to Defendant's letter notifying Plaintiff of a possible settlement in the wrongful death case, by sending two (2) letters. The first December 30, 1994 letter states:
Collateral Source Provider Response... In accordance with the requirements of Florida Statutes 768.76, you are hereby notified that the above health plan is a collateral source payor on behalf of the above patient and hereby asserts its rights of subrogation and/or reimbursement.
The second December 30, 1994 letter states:
The contract between the Health Plan and your client provides that the Health Plan has subrogation rights as an insurer. In this connection, the Health Plan also has the right to be reimbursed by your client for its costs of providing medical care in the event that any compensation is received by your client.
This second letter from Plaintiff does not mention any state or federal statutory or regulatory law, but clearly asserts its rights under the policy to be subrogated and/or reimbursed for medical expenditures.
According to Defendant, it relied on Plaintiff's representation that Section 768.76 was applicable in determining to settle the underlying claim. Citing Doe v. Allstate Ins. Co., 653 So.2d 371 (Fla.1995) and Blue Cross/Blue Shield United of Wisconsin v. Inverrary Hotel Corp., 579 So.2d 863 (Fla. 4th DCA 1991), Defendant argues that Plaintiff should be estopped from now urging a different rule of subrogation.[2]
Regarding the doctrine of promissory estoppel, "broadly stated... is that promise which the promisor should reasonably expect to induce action or forbearance of a substantial character on the part of the promisee and which does produce such action or forbearance is binding if an injustice can be avoided only by an enforcement of the promise." See 22 Fla. Jur 2nd Estoppel and Waiver, Section 4. On the other hand, the doctrine of waiver requires the knowing, intentional relinquishment of a known right, privilege, advantage, or benefit. Id., at Section 89.
As indicated above, pursuant to Section 768.76, Defendant notified Plaintiff of the potential settlement and reimbursement. In turn, on December 30, 1994, Plaintiff sent Defendant's counsel two (2) letters that gave notice of Plaintiff's intent to enforce its reimbursement rights. Although one letter refers to Section 768.76, the other letter simply referenced Plaintiff's rights under the subject policy and did not mention any statute or regulation. No evidence has been presented that Plaintiff represented it would seek subrogation via Florida law only, and neither Defendant nor his counsel dispute that they were aware federally mandated Medicare coverage was involved in that potential lien. Thus, it was not reasonable for Defendant to assume Section 768.76 was Plaintiff's only vehicle for subrogation. Moreover, Defendant could and should have known that Medicare was expressly excluded from state law concerning equitable subrogation of collateral sources, as explained above.
Further, the evidence at bar is unequivocal that any detrimental reliance by Defendant that Section 768.76 would govern reimbursement was upon the insurer and attorney of the nursing home and/or Defendant's counsel, and not Plaintiff. Counsel for Defendant testifies via Affidavit that on June 21, 1995, a settlement conference was held with an adjuster of the nursing home's insurer. Attorneys for two other claimants against the nursing home were also present. Counsel for Defendant states:
5. During the settlement conference, the Senior Adjuster from Scottsdale Insurance Co. [insurer for the nursing home] made it clear that the value of the three claims was far in excess of his Company's Million Dollar Policy, and that he intended to enter into settlement, that day, which would exhaust his policy limits. He also indicated that the value of any two of the claims taken together exceeded a million dollars and that if any claimant refused to settle for the amount offered, he was simply *1351 going to pay his entire policy limits to the two claimants who would agree to settle.
6. Unfortunately, the only way to resolve the aggregate coverage dispute was an action for declaratory judgment [sic], leaving my client in the position of choosing between rejecting a settlement and depending upon a declaratory judgment to find additional coverage plus trying the nursing home case or taking the settlement offered.
7. After lengthy negotiations, we arrived at a figure of $170,000.00 dollars for the claim of Mr. Valdez.
8. Elio Valdez, who was the plaintiff in his father's case, was very upset over what he felt was to be a grossly inadequate settlement for his father's death and at first refused to accept the sum offered.
9. It was only after I explained to Mr. Valdez that we could go before a Judge and seek equitable subrogation of Humana's Lien and after the Scottsdale Adjuster agreed to cooperate with us in placing facts of the settlement before a Judge to determine the amount of that lien, that M. Valdez agreed to settle the case.
10. At no time prior to the settlement of the Valdez Case did plaintiff Humana ever indicate that it was seeking subrogation upon any other grounds than Section 768.76 FL Statute.[3]
See Affidavit of Defendant's Counsel (emphasis added). As further explained by Yvonne Renshaw, Defendant's nursing consultant, Defendant relied on the representations of its counsel, not Plaintiff:
5. I was present during the settlement negotiations of Mr. Valdezs' [sic] case, and the key factor which convinced Mr. Valdez to settle his claim was Mr. Vessel's representation that he would seek to have Humana's lien substantially reduced through equitable subrogation.
Affidavit of Yvonne Renshaw, at Paragraph 5 (emphasis added). Defendant's counsel's June 22, 1995 correspondence to Plaintiff is further evidence that Defendant's reliance, if any, was not upon Plaintiff:
Florida does allow for "equitable" subrogation, where the Plaintiff has not collected the full value of his claim... We will therefore be asking you for a considerable discount beyond our right to have you pay your pro-rata share of fees and costs. The attorney who was defending the nursing home in this case has also agreed that, in the event that we are unable to reach a resolution, he is willing to testify to the matters which I have discussed above at a hearing, if necessary.
Id., (emphasis added). Nowhere in the above-letter does Defendant remind Plaintiff that it has already "promised" to be solely governed by Florida law, nor that Defendant relied on such a promise in deciding to settle the claim. Rather the letter assumes that Florida law governs subrogation for Medicare payments and indicates that the attorney for the nursing home has agreed to assist in achieving equitable subrogation. Thus, representations by Defendant's counsel and/or the insurer and attorney for the nursing home, not Plaintiff, resulted in Defendant's settlement of the wrongful death case for $170,000.00.
Likewise, the Court finds no waiver by Plaintiff to seek reimbursement under federal law. On the contrary, via the two (2) December 30th letters, Plaintiff noticed its intent to engage its subrogation rights under the Medicare policy, which it has done.
c. Application of Federal Law
As Plaintiff's HMO contract with Decedent involved Medicare payments, Plaintiff's subrogation rights are governed by Section 1395mm (e)(4) because it provides that an "eligible organization" may seek reimbursement from a member when that person receives benefits from a third party liability insurance policy or plan for medical services initially covered by the organization. Id. The insurer of the nursing home, which paid the settlement amount to Defendant, is the third-party liability insurer.
Accordingly, Plaintiff is entitled to seek reimbursement from Defendant via 42 C.F.R. *1352 417.528(b)(2), which provides that an HMO may charge "(2) the Medicare enrollee, to the extent that he or she has been compensated under the law or policy," the amount of "covered Medicare services." To become eligible for reimbursement, an HMO must identify the primary payers, determine the amounts payable to those payers, and coordinate benefits of its Medicare enrollees with the payers. Id.
III. CONCLUSION
Therefore, based upon the foregoing authority and reasons, it is
ORDERED AND ADJUDGED:
1.) Defendant's Motion to Dismiss (Dkt.3) is DENIED. Although Plaintiff may have intervened in the underlying state court action, Blue Cross Blue Shield of Florida v. Matthews, 498 So.2d 421 (Fla.1986), it was not so required.
2.) Defendant's Motion for Summary Judgment is DENIED.
3.) Plaintiff's Motion for Summary Judgment is GRANTED.
4.) DECLARATORY JUDGMENT in favor of Plaintiff and against Defendant is entered, as follows:
a. Florida's collateral sources law expressly exempts Medicare from consideration;
b. Plaintiff is entitled to be reimbursed for Medicare payments by Defendant, as provided in Section 417.528(b)(2).
ORDER ON MOTION FOR CLARIFICATION
THIS CAUSE is before the Court upon Defendant's Motion for Clarification (Doc. 34) of this Court's March 31, 1997 Order (Doc. 33) and, having considered said motion, and the record herein, the Court finds:
Defendant moves to clarify the March 31st Order because its is "in doubt" as to the meaning of the language contained in the Order: "(2) the Medicare enrollee, to the extent that he or she has been compensated under the law or policy." The language quoted is from 42 U.S.C. § 1395mm (e)(4)(B), instead of 42 C.F.R. § 417.528(b)(2) as cited in the Order. The regulation provides that the HMO may charge "the Medicare enrollee, to the extent that he or she has been paid by the carrier, employer, or other entity." 42 C.F.R. § 417.528(b)(2). Both the statute, § 1395mm and the regulation, § 417.528 are clear, and authorize Plaintiff to recover any amount paid by it for covered Medicare services, to the extend paid to Defendant by the liability carrier. Obviously, if there is a dispute as to the amount paid to Defendant by the liability carrier for covered Medicare services, a hearing will be necessary.
Neither the statute or regulation cited authorize a percentage reduction for fees and costs for an HMO charging a Medicare enrollee who is paid by a liability carrier for services provided by the HMO. Therefore, it is
ORDERED:
That to the extent stated herein, the Motion for Clarification is GRANTED, otherwise said motion is denied.
NOTES
[1] There is some speculation that the nursing home's liability insurer, in fact, had coverage of $2,000,000.00 to settle Defendant's claim. However, whether the nursing home's coverage was one or two million dollars is of no consequence to the issues before the Court.
[2] In his Affidavit, counsel for Defendant states that he counseled his client that Plaintiff's lien could be equitably adjusted downward, under Florida law, and that his client relied on the possibility of equitable subrogation in deciding to settle the wrongful death matter for $170,000.00.
[3] As discussed above, however, Plaintiff never promised to seek subrogation solely under Section 768.76, rather Plaintiff merely complied with Florida's notice requirements as well as sending Defendant additional notice.
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122 Cal.App.3d 625 (1981)
176 Cal. Rptr. 142
Estate of WALTER E. STEWART, Deceased.
BARBARA STEWART DuERMIT et al., Petitioners and Appellants,
v.
VICTOR D. STEWART et al., as Co-executors, etc., Objectors and Respondents.
Docket No. 24137.
Court of Appeals of California, Fourth District, Division One.
August 14, 1981.
*626 COUNSEL
Richardine M. Imrie for Petitioners and Appellants.
Jennings, Engstrand & Henrikson, Charles F. Gorder, Sr., and Judith E. Solomon for Objectors and Respondents.
OPINION
BROWN (Gerald), P.J.
Ronald L. Stewart and Barbara Stewart DuErmit appeal a judgment declaring they are not heirs of Walter E. Stewart and dismissing their petition to determine heirship (Prob. Code, § 1080).
Walter E. Stewart married Catherine Larsen, a widow with three children, including Ronald and Barbara's father Vincent. Walter and Catherine had four children. Walter received Vincent into his home; raised and supported Vincent; and treated Vincent no differently than his own children. Vincent used the Stewart name, but Walter did not adopt him.
*627 Walter died in 1978; both Catherine and Vincent predeceased him. Walter's will, executed March 21, 1975, was admitted to probate. In it Walter left the bulk of his estate, valued at about half a million dollars, in six equal shares, to his four children, Vincent's widow Vera, and the widow of Vincent's brother Charles. Under the will, if any of the named beneficiaries did not survive Walter, the beneficiary's lineal descendents would take his share. However, Vincent's widow Vera, survived Walter and received a sixth of the residue.
Ronald and Barbara did not contest the will within four months after its admission to probate (Prob. Code, § 380). More than a year and a half after the will was admitted to probate, they filed a petition to determine heirship (Prob. Code, § 1080) alleging they are heirs of Walter because their father Vincent was Walter's "equitably adopted" son. Their sibling refused to join them in the petition. A few months later, they filed a separate equitable action seeking to set aside the order admitting the will to probate. Among other allegations, they claim: the court lacked jurisdiction to make the order because they are Walter's heirs but did not receive notice of the probate proceedings, as required by Probate Code section 328; and probate of the will was secured by fraud, because the executors knew Ronald and Barbara are Walter's heirs but withheld this information from the court and fraudulently failed to give them notice of the proceedings.
Walter's executors opposed the petition to determine heirship and moved for summary judgment and judgment on the pleadings. The court found the doctrines of "equitable adoption" and implied contract inapplicable under the circumstances present here and concluded Ronald and Barbara are not Walter's heirs. It accordingly granted the executors' motion for judgment on the pleadings and dismissed the petition.
(1) The issue of a person not survived by a spouse are his heirs (Prob. Code, § 222). Unadopted stepchildren and their children are not "issue" under section 222 (Estate of Davis (1980) 107 Cal. App.3d 93, 95 [165 Cal. Rptr. 543]; Estate of Lima (1964) 225 Cal. App.2d 396, 398 [37 Cal. Rptr. 404]).
Ronald and Barbara contend, however, Vincent should have in equity the status of Walter's adopted son because Walter received Vincent into his home and treated him as a son. A so-called "equitable adoption" is no more than a legal fiction permitting specific performance of a contract *628 to adopt (Estate of Wilson (1980) 111 Cal. App.3d 242, 245 [168 Cal. Rptr. 533]; Estate of Grace (1948) 88 Cal. App.2d 956, 964-965 [200 P.2d 864]). Ronald and Barbara do not claim Walter expressly contracted to adopt Vincent. Nor does their petition state any facts from which the court could infer Walter intended to adopt Vincent, accepting the legal status of parent with all its attendant rights and duties. There is no basis for the court to conclude Walter agreed to undertake any role except that of a conscientious and affectionate stepparent.
The judgment is affirmed.
Cologne, J., and Staniforth, J., concurred.
A petition for a rehearing was denied August 31, 1981, and appellants' petition for a hearing by the Supreme Court was denied October 7, 1981.
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237 S.W.3d 428 (2007)
David LOCKWOOD, Appellant
v.
The STATE of Texas, Appellee.
No. 10-06-00251-CR.
Court of Appeals of Texas, Waco.
September 19, 2007.
*429 B.F. Summers, Law Office of B.F. Summers, Cedar Hill, for appellant.
Joe F. Grubbs, Ellis County Dist. Atty., Waxahachie, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
*430 OPINION
FELIPE REYNA, Justice.
A jury convicted David Lockwood of criminal mischief by damaging a city water meter and assessed his punishment at 270 days' confinement and a $1,000 fine. Lockwood contends in two points that: (1) the evidence is legally and factually insufficient to prove (a) he is the person who damaged the water meter or (b) he received the economic benefit of a public water supply; and (2) the court abused its discretion by charging the jury on the statutory presumption provided by section 28.03(c) of the Penal Code because (a) the State failed to prove that he received the economic benefit of a public water supply and (b) the court failed to instruct the jury that the State had to prove the facts giving rise to the presumption beyond a reasonable doubt. We will affirm.
Background
Lockwood applied for water service from the City of Red Oak in January 2004 for his home. The City cut off his water service in April for non-payment. Tony Stone, an employee of the City's Public Works Department, received a work order the following January to investigate a possible leak at Christy Pogue's house, which was next door to Lockwood's. Stone found that someone had bypassed the meter at Pogue's house and tapped into the city water supply with a water hose, which was the source of the leak. The other end of this water hose was connected to a faucet at Lockwood's house. Stone removed both water meters from the respective premises. On cross-examination, he explained that Lockwood's home was receiving water via the hose which had been used to bypass the meter at Pogue's house.
Although it is not entirely clear from the record, it appears that the water for Pogue's house was not cut off until the hose was found running from her meter to Lockwood's house. Stone testified that the angle stops for the water meters at both houses had been cut in an apparent effort to bypass the water meters. Public Works Director Charles Bertrand testified that the "ears" on both meters, through which "barrel locks" had been placed to prevent access to city water, had been broken as well.
A Red Oak police officer who investigated the next day confirmed that the hose ran to Lockwood's house and that both houses were receiving city water without paying for it. A code enforcement officer similarly testified that both houses were receiving city water but had "bypassed the normal system."
Another public works employee returned to Lockwood's house three months later and found that there was a leak around the meter box. Although Stone had removed the water meter, a length of pipe had been inserted to connect the water service line for Lockwood's house to the city water line without a meter.
Legal and Factual Sufficiency
Lockwood contends in his first issue that the evidence is legally and factually insufficient to prove that he damaged a water meter or received the economic benefit of a public water supply.
In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App. 2003).
*431 In a factual insufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.App.2006).
"For both legal and factual insufficiency challenges, we review the evidence against `the hypothetically correct jury charge for the case.'" Erskine v. State, 191 S.W.3d 374, 377 (Tex.App.-Waco 2006, no pet.) (quoting Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002)) (footnote omitted); accord Gearhart v. State, 122 S.W.3d 459, 466 (Tex.App.-Corpus Christi 2003, pet. ref'd); Villani v. State, 116 S.W.3d 297, 307 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). "The hypothetically correct jury charge is authorized by the indictment or information and encompasses [the] statutory elements of the offense." Erskine, 191 S.W.3d at 377 (citing Gharbi v. State, 131 S.W.3d 481, 482-83 (Tex. Crim.App.2003)) (other citations omitted); accord Gearhart, 122 S.W.3d at 466; Villani, 116 S.W.3d at 307.
As amended,[1] the information alleges in pertinent part that, on the occasion in question, Lockwood:
did then and there intentionally or knowingly damage or destroy tangible property, to-wit: a water meter, without the effective consent of Charles Bertrand, the owner of said property, and did thereby cause pecuniary loss of less than $1,500 to the said owner, and the defendant did then and there intentionally or knowingly cause, in whole or in part, impairment or interruption of public water supply.
See TEX. PEN.CODE ANN. § 28.03(a)(1), (b)(3)(B) (Vernon Supp.2006).
The jury charge largely corresponded to the allegations of the information but also included instructions concerning the statutory presumption provided by section 28.03(c) of the Penal Code, which states:
For the purposes of this section, it shall be presumed that a person who is receiving the economic benefit of public communications, public water, gas, or power supply, has knowingly tampered with the tangible property of the owner if the communication or supply has been:
(1) diverted from passing through a metering device; or
(2) prevented from being correctly registered by a metering device; or
(3) activated by any device installed to obtain public communications, public water, gas, or power supply without a metering device.
Id. § 28.03(c) (Vernon Supp.2006).
The statutory presumption provided by section 28.03(c) applies when there is an allegation that the defendant "has knowingly tampered with the tangible property of the owner." Id.; see also TEX. PEN.CODE ANN. § 28.03(a)(2) (Vernon Supp.2006) (person commits offense if he "intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience").
Here, the State did not allege that Lockwood "tampered" with the water meter under subsection (a)(2). Rather, the State alleged that he "damaged or destroyed" the water meter under subsection (a)(1). Thus, the statutory presumption of subsection (c) does not apply, and a hypothetically correct charge would not have instructed the jury on this presumption. See Gharbi, 131 S.W.3d at 482-83; Erskine, *432 191 S.W.3d at 377; Gearhart, 122 S.W.3d at 466; Villani, 116 S.W.3d at 307.
Although the State alleged that Lockwood had caused "pecuniary loss of less than $1,500," the statute under which he was charged requires that the State show "impairment or interruption of any public water supply . . . regardless of the amount of the pecuniary loss," and a hypothetically correct charge would not have required the jury to make a finding regarding any pecuniary loss that had been suffered. Id.; see also TEX. PEN.CODE ANN. § 28.03(b)(3)(B).
Therefore, we need not address the second part of Lockwood's evidentiary sufficiency challenge which questions whether the State proved that he received the economic benefit of a public water supplyan issue arising under the statutory presumption, which does not apply in this case. See TEX. PEN.CODE ANN. § 28.03(c).
The first part of Lockwood's evidentiary sufficiency challenge questions whether the State offered legally and factually sufficient evidence to prove that he is the person who damaged the water meter. Thus, Lockwood challenges the legal and factual sufficiency of the evidence to prove identity.
Identity may be proved by direct or circumstantial evidence. In fact, identity may be proven by inferences. When there is no direct evidence of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. Proof by circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. For the purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative.
Clark v. State, 47 S.W.3d 211, 214 (Tex. App.-Beaumont 2001, no pet.) (quoting Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd)).
Here, there is no direct evidence to establish Lockwood's identity as the person who damaged the water meter. However, there are four categories of circumstantial evidence which tend to establish his identity as the perpetrator.
First, Lockwood was the primary adult occupant of the premises. His co-defendant Christy Pogue testified that he lived in the home with his girlfriend Stella and Stella's three children. In addition, Lockwood is the person who applied with the city for water services for that residence. The jury could infer from Lockwood's exercise of control over the premises that he was the person who damaged the water meter which controlled the city water for that residence.
Second, the municipal water services for the residence had been cut off. Thus, Lockwood had a motive to obtain a source of water for himself and the other four occupants of the home. Evidence of motive is generally relevant and admissible to prove that a defendant committed the offense alleged. See Crane v. State, 786 S.W.2d 338, 349-50 (Tex.Crim.App.1990); Reedy v. State, 214 S.W.3d 567, 583 (Tex. App.-Austin 2006, pet. ref'd); Keen v. State, 85 S.W.3d 405, 413-14 (Tex.App.-Tyler 2002, pet. ref'd).
Third, Lockwood and his co-occupants were in possession of the "proceeds" of the crime, namely, city water. See Poncio v. State, 185 S.W.3d 904, 905 (Tex.Crim.App. 2006) (unexplained possession of recently stolen property permits an inference that the defendant is the one who committed the offense).
And finally, the pipe that was discovered three months later connecting the water *433 service line for Lockwood's house to the city water line without a meter constitutes evidence of a similar extraneous offense, which is probative of identity. See TEX.R. EVID. 404(b); Page v. State, 213 S.W.3d 332, 336 (Tex.Crim.App.2006).
Therefore, we hold that the evidence, when viewed in the light most favorable to the verdict, is such that a rational juror could have found beyond a reasonable doubt that Lockwood is the person who damaged the water meter.
Lockwood presents two primary arguments to support his contention that the evidence is factually insufficient. First, he notes that no witness testified that he or she personally saw Lockwood damage the water meter. And second, he refers to the testimony of Lockwood's co-defendant Pogue identifying her boyfriend as the person whom she "assumed" to have committed the offense.
As discussed above, the State may prove identity by circumstantial evidence, and we have already discussed the various circumstances from which the jury could infer that Lockwood damaged the water meter. The absence of "eyewitness testimony" does not render the evidence supporting the verdict "so weak" that the verdict is "clearly wrong and manifestly unjust." See Watson, 204 S.W.3d. at 414.
Pogue did identify her boyfriend as the person whom she believed to have committed the offense. Her testimony thus presented the jury with a credibility issue to resolve. The jury is "the sole judge of the weight and credibility of witness testimony." Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002). We must defer to the jury in its resolution of such issues. See id.; May v. State, 139 S.W.3d 93, 99 (Tex.App.-Texarkana 2004, pet. ref'd); Parker v. State, 119 S.W.3d 350, 355 (Tex. App.-Waco 2003, pet. ref'd). Thus, we cannot say that the conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d. at 414-15; May, 139 S.W.3d at 99.
Because the evidence is legally and factually sufficient, we overrule Lockwood's first point.
Jury Charge
Lockwood contends in his second point that the court abused its discretion by charging the jury on the statutory presumption provided by section 28.03(c) because the State failed to prove that he received the economic benefit of a public water supply and because the court failed to instruct the jury that the State had to prove the facts giving rise to the presumption beyond a reasonable doubt. We have already determined that the jury should not have been charged on this statutory presumption, albeit for a different reason than those urged by Lockwood. Cf. Pena v. State, 191 S.W.3d 133, 136 (Tex.Crim. App.2006) ("appellate courts are free to review `unassigned error'").
However, because Lockwood did not object to the charge at trial, he may not obtain reversal unless this error caused him to suffer egregious harm. Ex parte Smith, 185 S.W.3d 455, 463-64 (Tex.Crim. App.2006); Hanson v. State, 180 S.W.3d 726, 728 (Tex.App.-Waco 2005, no pet.).
[J]ury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. In examining the record to determine whether jury-charge error is egregious, the reviewing court should consider the entirety of the jury charge itself, the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed *434 by the record of the trial as a whole.
Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.App.2006) (citing Ngo v. State, 175 S.W.3d 738, 750 & n. 48 (Tex.Crim.App. 2005); Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App.1985) (op. on reh'g)) (other citations omitted).
Here, the charge required the jurors to find beyond a reasonable doubt that Lockwood had damaged or destroyed a water meter and that this caused impairment or interruption of the public water supply (and a pecuniary loss of less than $1,500). The statutory presumption of section 28.03(c) is aimed primarily at the issue of whether the defendant acted "knowingly" or "tampered" with a water meter, the latter of which was not an element in Lockwood's case. The jurors had ample evidence from which they could determine that Lockwood acted knowingly, including evidence that he controlled the premises, evidence of motive, evidence that the hose unlawfully connected to his water system was plainly visible, and evidence that his house had received public water via unlawful connections on at least two occasions. In closing argument, Lockwood's counsel focused on the absence of direct evidence to prove his involvement. Counsel made only one passing reference to purported confusion among the witnesses about which house was receiving water from an unlawful connection. One of the prosecutors did mention the presumption in closing argument but did not devote a significant amount of argument to it.
The testimony of several witnesses regarding the hose running from Pogue's damaged water meter to Lockwood's house constitutes overwhelming evidence that Lockwood was "receiving the economic benefit of public water supply." Therefore, we hold that he did not suffer egregious harm because of the error in the court's charge. Accordingly, we overrule his second point and affirm the judgment.
Chief Justice GRAY concurs in the judgment only. The discussion in the opinion bears no resemblance to the issues as presented in the briefs. On the issues briefed, I concur only with the Court's judgment affirming the trial court's judgment, without a separate opinion.
NOTES
[1] The information was amended to change the name of the complainant.
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2020 Decided July 17, 2020
No. 19-5212
ASSOCIATION FOR COMMUNITY AFFILIATED PLANS, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF THE TREASURY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02133)
Charles A. Rothfeld argued the cause for appellants. With
him on the briefs was Andrew J. Pincus.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, Todd B. Tatelman, Deputy General Counsel,
Megan Barbero, Associate General Counsel, Adam A. Grogg,
Assistant General Counsel, Elizabeth B. Wydra, Brianne J.
Gorod, and Ashwin P. Phatak were on the brief for amicus
curiae U.S. House of Representatives in support of appellants.
Chad I. Golder was on the brief for amici curiae American
Medical Association, et al. in support of appellants.
2
Kelly Bagby and Dara S. Smith were on the brief for amici
curiae AARP, et al. in support of appellants.
Joseph R. Palmore and James Sigel were on the brief for
amici curiae National American Cancer Society, et al. in
support of plaintiffs-appellants.
Daniel Winik, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was Alisa
B. Klein, Attorney.
Robert Alt and Ilya Shapiro were on the brief for amici
curiae The Buckeye Institute, et al. in support of defendants-
appellees.
Monica Derbes Gibson was on the brief for amicus curiae
Louisiana Commissioner of Insurance James J. Donelon in
support of appellees and in support of affirmance.
Lawrence G. Wasden, Attorney General, Office of the
Attorney General for the State of Idaho, Brian Kane, Assistant
Chief Deputy, Megan A. Larrondo, Deputy Attorney General,
and Anthony F. Shelley were on the brief for amici curiae State
of Idaho, et al. in support of appellees and in support of
affirmance.
Before: ROGERS, GRIFFITH, and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Dissenting opinion filed by Circuit Judge ROGERS.
GRIFFITH, Circuit Judge: Since 1996, federal law has
exempted “short-term limited duration insurance” (STLDI)
from most federal health insurance regulations. For nearly two
3
decades, the Departments of Treasury, Labor, and Health and
Human Services (the “Departments”) defined STLDI as plans
with an initial contract term of less than one year. When
Congress enacted the Patient Protection and Affordable Care
Act (ACA) in 2010, it retained the STLDI exemption and left
untouched the Departments’ longstanding definition. As a
result, the ACA allowed insurers to sell STLDI plans to healthy
individuals at a discount without complying with certain of the
statute’s pricing and coverage rules. In 2016, the Departments
became concerned that STLDI plans were drawing healthy
people out of the risk pool for ACA-compliant insurance,
causing premiums to rise. So they capped the length of such
plans at three months. But over the next two years, premiums
for ACA-compliant plans continued to soar while enrollment
dropped off. The Departments reversed course with the goal of
increasing the availability of more affordable insurance. The
Association for Community Affiliated Plans (ACAP), along
with other plaintiffs, challenged this reversal. The district court
granted the Departments summary judgment, and we affirm.
I
A
Congress first carved out an exception for STLDI in the
Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub. L. No. 104-191, § 102(a), 110 Stat. 1936, 1973
(codified at 42 U.S.C. § 300gg-91(b)(5)). By defining
“individual health insurance coverage” to “[ex]clude short-
term limited duration insurance,” Congress exempted STLDI
plans from many of HIPAA’s standards. Id. Congress
delegated the task of defining STLDI to the Departments. See
42 U.S.C. § 300gg-92 (permitting the Departments to
“promulgate such regulations as may be necessary or
appropriate to carry out the provisions of this subchapter”). In
4
1997, the Departments defined STLDI as coverage that expires
“within 12 months of the date the contract becomes effective,”
subject to renewal with the insurer’s consent. Interim Rules for
Health Insurance Portability for Group Health Plans, 62 Fed.
Reg. 16,894, 16,958 (Apr. 8, 1997). Seven years later, the
Departments reaffirmed that definition in a final rulemaking.
See Final Regulations for Health Coverage Portability for
Group Health Plans and Group Health Insurance Issuers Under
HIPAA Titles I & IV, 69 Fed. Reg. 78,720, 78,748 (Dec. 30,
2004).
When Congress enacted the ACA in 2010 to “expand
coverage in the individual health insurance market,” King v.
Burwell, 135 S. Ct. 2480, 2485 (2015), it incorporated by cross-
reference HIPAA’s definition of “individual health insurance
coverage,” including its exclusion of STLDI, see Pub. L. No.
111-148, § 1551, 124 Stat. 119, 258 (2010). As a result, STLDI
policies were not subject to many of the ACA’s key reforms,
which applied only to “individual health insurance coverage.”
Those key reforms included a combination of carrots and
sticks that encouraged consumers to purchase more
comprehensive coverage and ensured that they had the
financial means to do so. The ACA’s “guaranteed issue” and
“community rating” provisions prohibited insurers from
denying coverage or charging higher premiums based on an
individual’s race, gender, or health status. See 42 U.S.C.
§§ 300gg, 300gg-1(a). Recognizing that these provisions could
cause premiums to skyrocket by drawing older and sicker
Americans into the risk pool, Congress required everyone to
purchase “minimum essential coverage,” or else pay a tax
penalty. 26 U.S.C. § 5000A. Congress hoped that this
“individual mandate” would induce young, healthy people to
enter the market. However, Congress appreciated that
comprehensive insurance might be too expensive for some, so
5
it exempted low-income individuals from the penalty, id.
§ 5000A(e)(1), (5), and provided tax-credit subsidies to those
purchasing insurance through government-run “Exchanges,”
id. § 36B. Finally, Congress required that all plans offered on
the Exchanges provide “essential health benefits,” including
emergency services, prenatal care, and prescription drug
coverage. 42 U.S.C. §§ 18021(a)(1)(B), 18022(b)(1),
18031(d)(2)(B)(i).
More than 85% of those purchasing insurance on the
Exchanges do so using federal tax credits. See King, 135 S. Ct.
at 2493; Wu Decl. ¶ 6, J.A. 91. These credits effectively cap
the amount of money a person can expect to pay toward her
insurance. For example, a single person whose income is equal
to the poverty line will receive a subsidy sufficient to allow her
to purchase insurance for no more than 2% of her income. See
26 U.S.C. § 36B(b)(3)(A)(i). If insurance prices go up,
subsidies do too. As a result, subsidized individuals are largely
insulated from ballooning premiums.
Because the ACA directed the states to expand their
Medicaid coverage, Congress assumed that those below the
federal poverty line would be covered and did not make them
eligible for federal subsidies. But after NFIB v. Sebelius, 567
U.S. 519 (2012), held that the ACA’s Medicaid expansion must
be deemed optional to be constitutional, 2.3 million Americans
were left unable to afford insurance in states that declined to
expand their Medicaid programs, resulting in what’s now
called the Medicaid coverage gap. See Kaiser Family
Foundation, The Coverage Gap: Uninsured Poor Adults in
States that Do Not Expand Medicaid (Jan. 14, 2020),
https://www.kff.org/medicaid/issue-brief/the-coverage-gap-
uninsured-poor-adults-in-states-that-do-not-expand-medicaid.
6
When the Exchanges opened in 2014 and premiums
started to rise, consumers seeking cheaper insurance turned to
STLDI policies. These policies can be purchased at a fraction
of the cost because they are exempt from the ACA’s
community-rating, guaranteed-issue, and essential-health-
benefits requirements. But you get what you pay for. STLDI
plans offer skimpier coverage and higher deductibles. They
often expose consumers with undiagnosed preexisting
conditions to the risk of cancellation. And because they don’t
qualify as “minimum essential coverage,” they don’t satisfy the
individual mandate, meaning that those insured under STLDI
plans may be subject to the tax penalty.* Still, for those in the
Medicaid coverage gap or otherwise unable to afford an ACA-
compliant plan, a barebones STLDI policy is better than
nothing.
In 2016, the Departments became concerned that these
policies were drawing healthy Americans out of the risk pool
for ACA-compliant insurance, causing premiums to rise. To
discourage people from purchasing STLDI policies as their
primary insurance, the Departments revised the definition of
STLDI to cover only plans that expired “less than 3 months
after the original effective date of the contract.” Excepted
Benefits; Lifetime and Annual Limits; and Short-Term,
Limited-Duration Insurance, 81 Fed. Reg. 75,316, 73,326 (Oct.
31, 2016). By capping STLDI plans at three months and
prohibiting renewals, the Departments hoped to minimize the
use of STLDI as a “primary form of health coverage,” reducing
“adverse[] impact[s] [on] the risk pool for Affordable Care
Act-compliant coverage.” Id. at 75,317-18. Although some
commenters pointed out that the rule wouldn’t prevent insurers
*
The penalty now has no bite, because Congress reduced it to $0,
effective January 1, 2019. See Tax Cuts and Jobs Act of 2017, Pub.
L. No. 115-97, § 11081, 131 Stat. 2054, 2092 (2017).
7
from stringing together four three-month-long STLDI policies
to create year-round coverage, the Departments decided that a
prohibition on such bundling would be too difficult to enforce.
Id. at 75,318. Thus, even under the 2016 Rule, insurers could—
and did—market STLDI policies in year-round blocks.
Despite the Departments’ efforts, premiums in the
individual health insurance market continued to soar. Between
2016 and 2017, average premiums shot up 21%, while
Exchange enrollment of unsubsidized adults fell by almost the
same percentage (1.3 million in total). Short-Term, Limited-
Duration Insurance, 83 Fed. Reg. 38,212, 38,214 (Aug. 3,
2018). Acknowledging the burdens that these rising premiums
created, the Department of Health and Human Services sought
comments on how to expand affordable coverage options. Id.
at 38,213. Several commenters suggested revitalizing the
STLDI market. Id.
In 2018, the Departments proposed returning to the
original definition of STLDI. Short-Term, Limited-Duration
Insurance, 83 Fed. Reg. 7,437, 7,446 (Feb. 21, 2018).
Following a comment period, the Departments issued a final
rule defining STLDI as coverage with an initial contract term
of less than one year and a maximum duration of three years
counting renewals. 83 Fed. Reg. at 38,243. The Departments
also expanded disclosure requirements, directing insurers to
include a disclaimer that STLDI policies may “exclu[de] . . .
coverage of preexisting conditions,” may not provide certain
“health benefits,” and may not trigger a special enrollment
period if coverage expires mid-year. Id.
Two main reasons were given for the new rule: (1)
increasing access to affordable health insurance, especially
among the uninsured, and (2) increasing consumer choice. The
Departments explained that although the 2016 Rule “was
8
intended to boost enrollment in individual health insurance
coverage . . . , it did not succeed in that regard,” so “expansion
of additional coverage options . . . [was] necessary.” Id. at
38,214. They reasoned that the new rule would “expand[]
access to additional, more affordable coverage options for
individuals, including those who might otherwise be uninsured,
as well as to those who do not qualify for [premium tax
credits],” such as those in the Medicaid coverage gap. Id. at
38,216. The Departments acknowledged that expanding the
availability of STLDI “could have an impact on the risk pools
for individual health insurance coverage[] and could therefore
raise premiums.” Id. at 38,217. However, they predicted that
this effect would be modest, as subsidized enrollees were
shielded from the effect of rising premiums. Moreover, because
subsidies were available only on the Exchanges and “the
individual subsidized premium [was] so low,” they anticipated
that most “healthy lower-income individuals [would] remain in
[their ACA-compliant] plans.” Id. at 38,235-36.
The Departments estimated that approximately 100,000
uninsured people would enroll in STLDI plans in 2019 and
approximately 500,000 people would swap their ACA-
compliant plans for STLDI plans, producing a 1% increase in
unsubsidized premiums. Id. at 38,236. By 2028, the
Departments projected that 200,000 previously uninsured
individuals would enroll in STLDI plans, and 1.3 million
individuals would shift from ACA-compliant plans to STLDI
plans. Id. This would lead to a 5% increase in unsubsidized
premiums. Id. The Congressional Budget Office and the Urban
Institute both projected that the share of new STLDI enrollees
who were previously uninsured would be somewhat higher
(35% and 40% respectively). See id. at 38,237-38.
9
B
ACAP challenged the STLDI Rule, alleging that it was
contrary to law and arbitrary and capricious. The district court
held that ACAP had competitor standing because its
members—private insurers selling plans on government
Exchanges—faced growing competition from the STLDI
market. On the merits, the district court granted the
Departments’ motion for summary judgment, holding that the
STLDI Rule was a reasonable interpretation of HIPAA and the
ACA and that the change from the 2016 Rule to the current
STLDI Rule was not arbitrary and capricious. “We review the
district court’s grant of summary judgment de novo,” applying
the familiar standards of the Administrative Procedure Act.
Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006).
II
ACAP argues that the STLDI Rule is contrary to law
because it is inconsistent with HIPAA’s plain text and an
unreasonable interpretation of that text in light of the ACA’s
structure and purpose. We are not persuaded.
A
Recall that the phrase “short-term limited duration
insurance” does not appear in the ACA. Instead, the ACA
incorporates by cross-reference HIPAA’s definition of
“individual health insurance coverage,” which in turn is
defined to exclude “short-term limited duration insurance.” See
Pub. L. No. 111-148, § 1551, 124 Stat. at 258; 42 U.S.C.
§ 300gg-91(b)(5). ACAP argues that the Departments’
definition of STLDI is inconsistent with the text. We evaluate
that definition under Chevron USA, Inc. v. Natural Resources
10
Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Because
the phrase “short-term limited duration insurance” is
ambiguous, we defer to the Departments’ interpretation so long
as it is “based on a permissible construction of” HIPAA and the
ACA. Id. at 843. It is.
1
ACAP argues that the Departments’ definition involves an
unreasonable interpretation of “short-term” for two reasons.
First, ACAP argues that the ACA’s definition of “short
coverage gaps” restricts the Departments’ discretion to define
“short-term” as used in HIPAA and incorporated by cross-
reference into the ACA. Noting that the ACA exempts from the
individual mandate persons who experience “short coverage
gaps” of “less than 3 months,” 26 U.S.C. § 5000A(e)(4)(A),
ACAP maintains that “Congress presumptively intended [the
ACA’s] definition of short—as meaning a period of less than 3
months—to apply to the interpretation of . . . [HIPAA’s]
phrase short-term coverage.” ACAP Br. 54 (internal quotation
marks omitted). In other words, whatever “short-term”
originally meant under HIPAA, it must now mean three
months.
We cannot agree that Congress intended to amend HIPAA,
a statute written over a decade before the ACA, in such a
roundabout way. “[W]e will not understand Congress to have
amended [a prior] act by implication unless there is a positive
repugnancy between the provisions of the preexisting and
newly enacted statutes, as well as language manifesting
Congress’s considered determination of the ostensible
change.” U.S. Ass’n of Reptile Keepers, Inc. v. Zinke, 852 F.3d
1131, 1141 (D.C. Cir. 2017) (internal quotation marks
omitted). Congress knows how to impose time limits—after all,
11
it defined “short coverage gaps” as “less than 3 months”—but
it didn’t do so for STLDI plans.
Second, ACAP responds that even if the ACA doesn’t
limit “short-term” insurance to three months, the Departments’
definition still contradicts the plain text of HIPAA. “Short-
term” means “occurring over or involving a relatively short
period of time.” Short-Term, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2103 (1981). As ACAP sees it,
an STLDI policy must be “meaningfully shorter than the
standard annual insurance term,” and a 364-day policy is not
“meaningfully shorter” than a 365-day one. ACAP Br. 51.
But there is nothing unreasonable about the Departments’
definition. Consider, for example, how federal tax law defines
capital gains. A “short-term capital gain” is a gain derived from
an investment held for less than one year. 26 U.S.C. § 1222(1).
A “long-term capital gain” is a gain derived from an investment
held for one year or more. Id. § 1222(3). A 364-day investment
is not “meaningfully shorter” than a 365-day one, yet the gains
from each investment fall into different categories. So too here,
it’s perfectly reasonable to describe a 364-day policy as “short-
term,” even if a 365-day policy would not be.
ACAP would impose an artificial limitation on the
Departments’ discretion by requiring STLDI policies to be not
just “shorter” than the standard term but “meaningfully” so.
This limitation finds no support in the text and strikes us as
unworkable. Can the Departments cap STLDI plans at nine
months? Ten months? Eleven months? Without further
guidance from Congress, we will not place amorphous
restrictions on the Departments’ authority to define such an
open-ended term. It suffices to say that the Departments have
the discretion to define STLDI to include policies shorter than
the standard policy term.
12
2
ACAP next argues that the Departments’ definition is not
properly confined to “limited duration” plans. It would seem
that a plan that cannot be renewed beyond three years is, quite
literally, “limited” in “duration.” Nevertheless, in an effort to
evade the phrase’s ordinary meaning, ACAP suggests that
“limited duration” actually means “nonrenewable.” ACAP Br.
56. One of HIPAA’s central reforms was to guarantee
renewability of most “individual health insurance coverage.”
42 U.S.C. § 300gg-42(a). STLDI plans are exempt from that
guarantee because they are exempt from HIPAA’s definition of
“individual health insurance coverage.” Id. § 300gg-91(b)(5).
From this lack of a guarantee of renewability, ACAP infers a
prohibition. But nothing in HIPAA prevents insurers from
renewing expired STLDI policies. Indeed, from 1997 to 2016,
renewals were allowed with the insurer’s consent.
ACAP responds that if “limited duration” does not mean
“nonrenewable,” then it’s redundant of “short term.” Not so.
Under the Departments’ definition, “short-term” refers to the
initial contract term, while “limited duration” refers to the
policy’s total length, including renewals. This reasonable
reading gives independent meaning to each term.
In any event, the Departments didn’t pick the three-year
limitation out of a hat. They matched the duration of STLDI
policies to that of similar types of temporary insurance, such as
COBRA. See 83 Fed. Reg. at 38,221 (noting that COBRA
“requires certain group health plan sponsors to provide a
temporary continuation coverage option for a minimum of 18,
29, or 36 months”); see also id. (explaining that the Federal
Employees Health Benefits Program permits temporary
continuation of coverage for up to three years). Congress
13
granted the Departments wide latitude to define STLDI, and
while the Departments retain the flexibility to narrow their
definition in the future, nothing in the text forecloses their
current interpretation.
B
ACAP next argues that the STLDI Rule is “irreconcilable
with the structure and policy of the ACA,” ACAP Br. 25, and
will ravage the government Exchanges. We disagree.
1
ACAP’s core contention is that the STLDI Rule
contravenes the spirit of the ACA. ACAP contends that
“Congress’s plan was to create a single, ACA-compliant
individual market.” ACAP Br. 42 (emphasis added). ACAP
says that the STLDI Rule is unreasonable because it facilitates
the development of a parallel, “shadow” market for plans that
do not provide comprehensive coverage. ACAP Reply 3. But
the exception for STLDI is baked into the statute itself. By its
own terms, the ACA exempts STLDI plans from the provisions
requiring insurers to provide certain benefits, see 42 U.S.C.
§§ 18021(a)(1)(B), 18022(b)(1), 18031(d)(2)(B)(i), and to treat
all purchasers as members of a single risk pool, see id.
§ 18032(c). Contrary to ACAP’s portrayal, the Departments
did not fashion a new category of insurance out of whole cloth
to evade the ACA’s restrictions; they simply crafted rules to
clarify which policies fall within the exception Congress
created.
And the Departments reasonably defined the contours of
that exception. On the day that Congress enacted the ACA,
HIPAA had excluded “short-term limited duration insurance”
from the definition of “individual health insurance coverage”
14
for over a decade. And for all that time, the Departments had
defined the term almost exactly as they do today. That is
powerful evidence that the modern STLDI Rule is consistent
with the ACA. After all, “[w]here Congress ‘adopts a new law
incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation given
to the incorporated law, at least insofar as it affects the new
statute.’” Gordon v. U.S. Capitol Police, 778 F.3d 158, 165
(D.C. Cir. 2015) (quoting Lorillard v. Pons, 434 U.S. 575, 581
(1978)).
ACAP argues that there’s “no evidence that Congress was
even aware of the Departments’ interpretation . . . when it
enacted the ACA.” ACAP Br. 48. But if there were ever
“reason to assume[] congressional familiarity with the
administrative interpretation at issue,” Public Citizen, Inc. v.
HHS, 332 F.3d 654, 669 (D.C. Cir. 2003), it is here, where
“[d]espite the ACA’s sweeping reforms,” Congress “left intact
and incorporated” the STLDI exception, Central United Life
Insurance Co. v. Burwell, 827 F.3d 70, 72 (D.C. Cir. 2016).
ACAP objects that Congress would’ve spoken more
clearly had it had intended to empower the Departments to
permit the sale of a primary insurance product outside of the
ACA-compliant marketplace. Riffing on Justice Scalia, ACAP
accuses the Departments of trying to squeeze a “regulatory
elephant” into a “statutory mousehole.” ACAP Br. 40 n.15
(citing Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457,
468 (2001)). But a legislative provision authorizing the
Departments to define an entire category of insurance not
subject to ordinary federal standards is no “mousehole.” And a
regulation that has only modest effects on the government
Exchanges is no “elephant.”
15
Nevertheless, ACAP insists that Congress likely did not
expect insurance companies to market STLDI as primary
insurance. Instead, ACAP says, Congress must have assumed
that STLDI would be sold as temporary coverage that did not
compete with ACA-compliant plans. The dissent goes further,
suggesting that Congress “decided not to allow consumers to
purchase plans offering less than minimum ‘essential health
benefits’ as their primary form of coverage.” Dissent at 6
(emphasis added). The problem with this argument is that
Congress expressly elected not to set up a Hobson’s choice
between purchasing ACA-compliant insurance and forgoing
coverage altogether. Cf. 42 U.S.C. § 18032(d)(3)(A) (“Nothing
in this title shall be construed to restrict the choice of a qualified
individual to enroll or not to enroll in a qualified health plan or
to participate in an Exchange.” (footnote omitted)). To be sure,
Congress hoped that most individuals would purchase ACA-
compliant plans as their primary insurance, and it provided
incentives to encourage them to do so. It increased the
availability of such plans through the community-rating and
guaranteed-issue provisions, provided subsidies to low-income
adults, and imposed a penalty on those who failed to maintain
“minimum essential coverage.” But it did not foreclose other
options.
For example, in addition to STLDI, Congress left in place
exceptions for “fixed indemnity” insurance, which pays out a
set amount for predetermined events such as hospitalization.
Id. § 300gg-91(c)(3)(B). As with STLDI, “many individuals
found it cost-effective to forego minimum essential coverage
(even despite the penalty) in favor of these fixed indemnity
policies.” Central United Life Insurance, 827 F.3d at 72. As we
have previously acknowledged, the ACA permits that choice,
id. at 72-75, even as it nudges individuals toward choosing
more comprehensive insurance. ACAP sees these alternative
options as loopholes that the Departments should have closed,
16
but the Departments need not rewrite the law to fit ACAP’s
preferences.
ACAP frames the ACA as relentlessly pursuing one goal:
maximizing the number of individuals with comprehensive
health insurance. But “no legislation pursues its purposes at all
costs.” See Albany Eng’g Corp. v. FERC, 548 F.3d 1071, 1076
(D.C. Cir. 2008) (quoting Rodriguez v. United States, 480 U.S.
522, 525-26 (1987)). And like most statutes, the ACA pursues
multiple competing missions, among them expanding
coverage, decreasing premiums, and maximizing quality. The
STLDI Rule reasonably balances those goals by expanding
coverage to the uninsured, including those in the Medicaid
coverage gap, at the expense of higher unsubsidized premiums
for comprehensive insurance. Balancing the costs and benefits
of expanding the length of STLDI policies is the Departments’
bailiwick. And whatever choice we might have made in their
shoes, we cannot substitute our judgment for theirs.
2
ACAP next objects that the Departments cannot adopt an
interpretation of STLDI that would lay waste to one of the
ACA’s key reforms: the Exchanges. Although we agree that
the Departments may not adopt a definition of STLDI that
“would destabilize the individual insurance market . . . and
likely create the very ‘death spirals’ that Congress designed the
Act to avoid,” King, 135 S. Ct. at 2493, the Departments
reasonably predicted that the Rule’s impacts on Exchange
enrollment and premiums would be limited. And experience
has borne out that prediction.
We defer to “reasonable agency prediction[s] about the
future impact of [the agency’s] own regulatory policies.”
Louisiana Energy & Power Auth. v. FERC, 141 F.3d 364, 370
17
(D.C. Cir. 1998). Here, the Departments reasonably concluded
that the Rule’s potential effects on premiums would be
relatively small. Compare 38 Fed. Reg. at 38,236-38
(predicting a 5% increase), with King, 135 S. Ct. at 2493
(predicting as much as a 47% increase). And the Departments
reasonably predicted that the Rule’s potential effects on
Exchange enrollment would be blunted by federal subsidies.
The vast majority of individuals purchasing plans on the
Exchanges receive subsidies and are thus “largely insulated
from premium increases.” 83 Fed. Reg. at 38,213. Because
subsidies “are available only for [ACA-compliant] plans
offered on [the] Exchanges” and the out-of-pocket cost to
subsidized individuals is “so low,” the Departments anticipated
that most “lower-income individuals [would] remain in [their
ACA-compliant] plans.” Id. at 38,235-36.
This prediction was shared by the Congressional Budget
Office and several nongovernmental organizations, including
opponents of the STLDI Rule. See id. at 38,325-28. As even a
report commissioned by ACAP acknowledged, “the concept of
a death spiral . . . is less applicable” to the Exchanges because
the subsidies soak up premium increases. See Wakely
Consulting Group, Effects of Short-Term Limited Duration
Plans on the ACA-Compliant Individual Market 3,
http://www.communityplans.net/wp-content/uploads/2018/04/
Wakely-Short-Term-Limited-Duration-Plans-Report.pdf; see
also ACAP Comment at 5, J.A. 393 (citing this report).
Experience confirms these predictions were reasonable.
Following the promulgation of the STLDI Rule, premiums for
benchmark Exchange plans actually fell by 1.5% in 2019. See
Wu Decl. ¶ 18, J.A. 94-95. And in 2020, premiums for those
same benchmark plans dropped another 4%. See Press Release,
Centers for Medicare & Medicaid Services (Oct. 22, 2019),
https://www.cms.gov/newsroom/press-releases/premiums-
18
healthcaregov-plans-are-down-4-percent-remain-unaffordable
-non-subsidized-consumers. Similarly, participation in the
Exchanges was not obviously correlated with the new Rule.
Indeed, enrollment went up in some states that permitted the
sale of year-long STLDI policies and down in others that
restricted its sale to shorter time periods. See Wu Decl.
¶¶ 21-22, J.A. 95-96. Because the Departments reasonably
(and, as it turns out, correctly) predicted that the STLDI Rule
would not result in a premium-driven mass exit from the
Exchanges, we reject ACAP’s argument that the Rule is invalid
based on speculation about its potential, unrealized effects.
III
Finally, ACAP argues that the STLDI Rule is arbitrary and
capricious. Once again, we disagree.
First, ACAP says that the Departments failed to consider
the impact of the STLDI Rule on the Exchanges and relied on
factors that Congress had not intended them to consider. But
the Departments expressly acknowledged that expanding the
length of STLDI plans “could have an impact on the
[Exchange] risk pools” and “could therefore raise premiums.”
83 Fed. Reg. at 38,217. They concluded, however, that such an
impact would be relatively minor and that the need to expand
affordable coverage options, especially for those who could not
afford ACA-complaint insurance, “substantially outweigh[ed]”
that impact. Id. We therefore reject ACAP’s assertion that the
Departments failed to consider the Rule’s effects or acted
outside of their discretion to balance the statute’s competing
policy goals.
Next, ACAP argues that the Departments failed to
adequately explain their departure from the 2016 Rule.
“Agencies are free to change their existing policies as long as
19
they provide a reasoned explanation for the change.” Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). The
agency “need not demonstrate to a court’s satisfaction that the
reasons for the new policy are better than the reasons for the
old one.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). “[I]t suffices that the new policy is permissible
under the statute, that there are good reasons for it, and that the
agency believes it to be better . . . .” Id.
The Departments amply met this obligation. As the
Departments explained, the 2016 Rule “did not succeed” in
“boost[ing] enrollment in individual health insurance
coverage.” 83 Fed. Reg. at 38,214. Instead, average monthly
enrollment dropped by 10%, and average monthly premiums
increased by 21% from 2016 to 2017. Id. Acknowledging that
expanding the availability of STLDI plans would draw some
individuals out of comprehensive plans into skimpier STLDI
plans, see id. at 38,236, the Departments reasoned that the
change would be beneficial because it would “reduce the
fraction of the population that is uninsured,” id. at 38,228.
Especially given the advent of the Medicaid coverage gap, it
was reasonable for the Departments to strive to create cheaper
coverage options for those who might otherwise go uninsured.
Last, ACAP argues that the STLDI Rule could produce
coverage gaps for consumers whose STLDI policies expire
mid-year. Adults who lose their ACA-compliant coverage
qualify for a special enrollment period. 45 C.F.R. § 155.420.
But a person who loses STLDI coverage typically must wait
until the next open enrollment period to obtain ACA-compliant
coverage on the Exchanges.
The Departments reasoned that the 2016 Rule exacerbated
the coverage-gap problem because three-month STLDI plans
were often not long enough to tide people over to the next open
20
enrollment period. See 83 Fed. Reg. at 38,217. For example, an
individual who lost coverage in February and was not entitled
to a special enrollment period would have to wait until
November to enroll. Allowing STLDI policies to run for just
under one year ensures that individuals can always purchase a
policy to fit their need for temporary coverage.
ACAP responds that as long as individuals only use
STLDI to bridge gaps between two ACA-compliant policies,
there need never be a coverage-gap issue under the 2016 Rule.
But the reality is that even under the 2016 Rule, many
individuals were purchasing STLDI as their primary insurance.
For those people, the 2016 Rule created more volatility because
they could be “subject to re-underwriting” every three months,
could see a “greatly increased” premium, could be denied a
new policy “based on preexisting medical conditions,” and
“would not get credit” toward any deductible on a new plan
“for money spent toward the deductible during the previous 3
months.” 83 Fed. Reg. at 38,218. Finally, to ensure that persons
considering purchasing an STLDI policy in lieu of an ACA-
compliant one would be aware of the risk of coverage gaps, the
Departments required insurers to include a disclaimer that the
loss of STLDI coverage may not trigger a special enrollment
period. Id. at 38,243. Under our deferential standard of review,
that is sufficient to respond to commenters’ concerns.
IV
The dissent would invalidate the STLDI Rule as
“inconsistent with the [ACA’s] statutory scheme.” Dissent at
6. But the dissent never says what that scheme requires. The
dissent acknowledges that Congress expressly exempted
STLDI policies from the statute’s requirements, leaving in
place the Departments’ longstanding regulatory definition. Id.
at 3. The dissent does not suggest that the ACA required the
21
Departments to initiate a rulemaking to change that definition.
Nor does the dissent adopt ACAP’s more extreme textual
argument that the ACA required the Departments to cap STLDI
policies at three months. And while the dissent presumably
would not have taken issue with the 2016 Rule, that rule also
did not prevent individuals from purchasing STLDI plans as
their primary coverage. 81 Fed. Reg. at 75,318.
Boiled down, the dissent’s objection to the STLDI Rule is
a prudential one—STLDI plans aren’t good for consumers, so
they should be restricted as much as possible. But so long as
the Departments have acted within the bounds of their
statutorily delegated authority, that policy judgment is theirs to
make. When Congress delegates decisionmaking authority to
an agency, it sacrifices control for flexibility. Delegation
empowers a comparatively nimbler actor to respond to changed
circumstances and unanticipated consequences. Sometimes
(perhaps often), the agency will have to make policy tradeoffs
in real-world settings that Congress did not imagine. That is
exactly what happened here. In 2016, the Departments changed
the definition of STLDI to respond to concerns about
increasing premiums and decreasing enrollment. Two years
later, confronted by still-increasing premiums and the
Medicaid coverage gap, the Departments decided that
expanding affordable coverage options was the way to go. If
Congress disagrees with that decision, it can take back the
reins. Or if a new Administration comes to power with a
different vision of how the ACA’s competing policy goals
should be balanced, it can revisit the Departments’ choice. But
as judges, our role is narrow: to ensure only that the
Departments reasonably exercised the policymaking authority
granted to them and not to us. Because the Departments
satisfied that constraint, we leave the STLDI Rule in place.
22
V
Having concluded that the STLDI Rule is neither contrary
to law nor arbitrary and capricious, we affirm.
So ordered.
ROGERS, Circuit Judge, dissenting: Today the court
upholds a Rule defining “short-term limited duration
insurance” (“STLDI”) to include plans that last for up to three
years and function as their purchasers’ primary form of health
insurance, in stark contrast to the gap-filling purpose for which
such plans were created. Because STLDI plans are exempt
from the requirements of the Patient Protection and Affordable
Care Act (“ACA”), insurers offering them can cut costs by
denying basic benefits, price discriminating based on age and
health status, and refusing coverage to older individuals and
those with preexisting conditions. As a result, they leave
enrollees without benefits that Congress deemed essential and
disproportionately draw young, healthy individuals out of the
“single risk pool” that Congress deemed critical to the success
of the ACA’s statutory scheme. 42 U.S.C. § 18032(c)(1). The
Supreme Court has instructed courts to interpret the ACA’s
provisions in a manner “consistent with . . . Congress’s plan.”
King v. Burwell, 135 S. Ct. 2480, 2496 (2015). Because the
Rule flies in the face of that plan by expanding a narrow
statutory exemption beyond recognition to create an alternative
market for primary health insurance that is exempt from the
ACA’s comprehensive coverage and fair access requirements,
I respectfully dissent.
I.
The ACA is a comprehensive statutory scheme that
Congress enacted to address certain problems that had existed
for decades in the health insurance market. See King, 135 S.
Ct. at 2485. First, insurers competed for consumers by selling
low-cost but skimpy plans that offered less than comprehensive
coverage. For example, before the ACA, 75% of non-group
health plans did not cover delivery and inpatient maternity care,
38% did not cover mental health services, and nearly 20%
limited their coverage of prescription drugs. Amicus Br. of
Am. Med. Ass’n et al. 13. Second, insurers further competed
on price by denying coverage to individuals who were likely to
2
incur greater medical expenses, particularly those with
preexisting medical conditions, or charging such individuals
higher rates. Amicus Br. of Nat’l Am. Cancer Soc’y et al. 17.
This practice disproportionately affected older people and
women; the prevalence of preexisting conditions increases with
age, id., and before the ACA, insurers routinely denied
coverage on the basis of such preexisting conditions as
pregnancy, a previous Cesarean section, or a history of
surviving domestic abuse, Amicus Br. of U.S. House of
Representatives 7. Additionally, in a practice known as age
rating, insurers frequently charged higher premiums based
solely on an individual’s age, sometimes by as much as eleven
times the rates they charged younger people. Amicus Br. of
AARP et al. 13.
The ACA addressed these problems through a particular
“series of interlocking reforms” designed to promote fair
access to comprehensive, affordable coverage. King, 135 S.
Ct. at 2485. As to fair access, the ACA’s central provisions
include “guaranteed issue” and “community rating”
requirements, which mandate that insurers accept everyone
who applies for coverage and limit price discrimination,
respectively. 42 U.S.C. §§ 300gg(a)(1), 300gg-1(a). For
example, insurers may not take preexisting conditions or
gender into consideration when setting premiums, and age
rating may not exceed a factor of three to one. Id. §§
300gg(a)(1)(A)(iii), (a)(1)(B). As to comprehensive coverage,
Congress required all individual plans to provide “essential
health benefits,” id. § 300gg-6(a), including preventive care,
prescription drugs, maternity and newborn care, mental health
services, emergency services, and hospitalization, id. §
18022(b)(1). As to affordability, Congress offered tax credits
to qualifying individuals. 26 U.S.C. § 36B. Further, Congress
understood from failed healthcare reform efforts at the state
level that guaranteed issue and community rating requirements
3
have the unintended consequence of encouraging adverse
selection. King, 135 S. Ct. 2485–86. That is, when insurers
are required to accept anyone who applies for coverage and to
charge the same premiums regardless of health status,
consumers have an incentive to wait to purchase insurance until
they become ill, which drives premiums higher. Id. To
“minimize this adverse selection and broaden the health
insurance risk pool to include healthy individuals, which will
lower health insurance premiums,” 42 U.S.C. § 18091(2)(I),
Congress required most people to maintain “minimum
essential coverage,” 26 U.S.C. § 5000A(a), and required
insurers to consider all enrollees in the individual market “to
be members of a single risk pool,” 42 U.S.C. § 18032(c)(1).
Congress provided for certain limited exemptions from the
ACA’s requirements, including the exemption of “short-term
limited duration insurance.” Id. § 300gg-91(b)(5). As the
Departments of Treasury, Labor, and Health and Human
Services (“Departments”) acknowledged in the preamble to the
challenged Rule, STLDI was a well-understood insurance
product that existed before the ACA and “was primarily
designed to fill temporary gaps in coverage that may occur
when an individual is transitioning from one plan or coverage
to another plan or coverage.” Short-Term, Limited-Duration
Insurance, 83 Fed. Reg. 38,212, 38,213 (Aug. 3, 2018) (“2018
Final Rule”); see also Excepted Benefits; Lifetime and Annual
Limits; and Short-Term, Limited-Duration Insurance, 81 Fed.
Reg. 75,316, 75,317 (Oct. 31, 2016) (“2016 Final Rule”). As
the product’s name suggests, STLDI never was intended as a
long-term form of primary insurance coverage. STLDI plans
therefore did not compete with ACA-compliant plans for
enrollees, because these short-term, stop-gap plans served a
different purpose than long-term coverage.
4
Following the ACA’s enactment, some insurers began to
offer STLDI plans “in situations other than those that the
exception from the definition of individual health insurance
coverage was initially intended to address,” namely, as
purchasing individuals’ “primary form of health coverage.”
2016 Final Rule, 81 Fed. Reg. at 75,317. Because STLDI is
not subject to the ACA’s requirements, those who enroll in
STLDI plans may not receive “meaningful health coverage,”
and because STLDI issuers can cut costs by discriminating
based on health status, these plans may disproportionately
attract healthier individuals, “thus adversely impacting the risk
pool for Affordable Care Act-compliant coverage.” Id. at
75,317–18. To prevent the ACA from being undermined in
this manner, the Departments defined STLDI as a health
insurance plan lasting no longer than three months, taking into
account any extensions. Id. at 75,326 (amending 45 C.F.R. §
144.103).
On January 20, 2017, the day President Trump took office,
he issued an executive order announcing his administration’s
intention “to seek the prompt repeal of the Patient Protection
and Affordable Care Act.” Exec. Order No. 13,765,
Minimizing the Economic Burden of the Patient Protection and
Affordable Care Act Pending Repeal, 82 Fed. Reg. 8351, 8351
(Jan. 24, 2017). After failing to persuade Congress to repeal
the statute, the President issued a new executive order, which
observed that “STLDI is exempt from the onerous and
expensive insurance mandates and regulations” of the ACA
and therefore was “an appealing and affordable alternative to
government-run exchanges.” Exec. Order No. 13,813,
Promoting Healthcare Choice and Competition Across the
United States, 82 Fed. Reg. 48,385, 48,385 (Oct. 17, 2017).
The President therefore directed the Departments to consider
proposing regulations “to expand the availability of STLDI”
within sixty days. Id. at 48,386.
5
Following this directive, the Departments promulgated a
Rule designed to facilitate the use of STLDI as “an affordable
alternative” to ACA-compliant insurance. 2018 Final Rule, 83
Fed. Reg. at 38,229. The Departments acknowledged that
STLDI was a product “that was primarily designed to fill
temporary gaps in coverage that may occur when an individual
is transitioning from one plan or coverage to another plan or
coverage.” Id. at 38,213. Nevertheless, they determined that
it also should be offered as “an additional choice” to “exist[]
side-by-side with individual market coverage” that must
comply with the ACA’s requirements. Id. at 38,218. With this
objective in mind, the Departments redefined STLDI to include
any plan with an initial contract term of less than twelve
months and a total duration of no longer than thirty-six months
including renewals or extensions. Id. at 38,243 (amending 45
C.F.R. § 144.103).
II.
In administering the ACA, the Departments “are bound,
not only by the ultimate purposes Congress has selected, but by
the means it has deemed appropriate, and prescribed, for the
pursuit of those purposes.” MCI Telecomms. Corp. v. Am. Tel.
& Tel. Co., 512 U.S. 218, 231 n.4 (1994). The ACA not only
sought to expand access to affordable health insurance, but it
did so in a particular manner: Congress deemed certain health
benefits essential, prohibited discrimination against individuals
with preexisting conditions, and ensured that healthier and less
healthy individuals would share a single risk pool. The
exemption from these requirements for STLDI plans addressed
a well-understood insurance product that existed at the time to
fill gaps in coverage, as the Departments have acknowledged.
2018 Final Rule, 83 Fed. Reg. at 38,213. Apparently
unsatisfied with the statutory scheme that Congress devised,
6
the Departments fashioned this limited exemption into an
alternative class of primary health insurance that need not
comply with the ACA’s statutory requirements. I would hold
that the Departments impermissibly defined “short-term
limited duration insurance” in a manner inconsistent with the
statutory scheme and would remand the Rule for further
proceedings consistent with the ACA’s structure. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–
43 (1984).
The Rule departs from the ACA’s structure in several
significant ways, recreating the problems that existed in the
American health insurance market before the statute’s
enactment and that the statute was designed to solve. First, the
Rule promotes the use of STLDI plans to circumvent the
coverage requirements that Congress deemed essential. The
Departments state that the Rule “empowers consumers to
purchase the benefits they want and reduce overinsurance.”
2018 Final Rule, 83 Fed. Reg. at 38,228. But Congress
expressly decided not to allow consumers to purchase plans
offering less than minimum “essential health benefits” as their
primary form of coverage. 42 U.S.C. § 300gg-6(a). In
contravention of Congress’s judgment, 71% of recently studied
STLDI plans do not cover outpatient prescription drugs, 43%
do not cover mental health services, and none cover maternity
care. Amicus Br. of Am. Med. Ass’n et al. 17.
Unsurprisingly, failing to provide minimum essential
benefits allows STLDI issuers to charge approximately half the
cost of an average, unsubsidized ACA-compliant plan
available through the Exchange, 2018 Final Rule, 83 Fed. Reg.
at 38,236, but at the expense of allowing consumers to gamble
on plans that may not offer adequate protection against
unforeseen medical expenses. For example, STLDI plans
generally do not cover oncology drugs for patients diagnosed
7
with cancer, which cost approximately $10,000 per month on
average. Amicus Br. of Am. Med. Ass’n et al. 16 n.27 (quoting
Rachel Schwab, Coming up Short: The Problem with Counting
Short-Term, Limited Duration Insurance as Coverage, CTR. ON
HEALTH INS. REFORMS, GEORGETOWN UNIV. HEALTH POLICY
INST., June 7, 2019). Yet approximately 40% of Americans
will develop cancer at some point in their lifetimes, and
needless to say, most cancer diagnoses are unexpected.
Amicus Br. of Nat’l Am. Cancer Soc’y et al. 8, 25. Further,
individuals who purchase STLDI may not realize that their
plans contain such limitations; reports indicate that STLDI
brokers often use aggressive and misleading marketing tactics,
Amicus Br. of AARP et al. 18–19, and they can advertise more
extensively than brokers of ACA-compliant plans, because
they are not subject to the ACA’s requirement that insurers
must spend at least 80% of premiums on clinical services and
quality improvements, as opposed to other costs such as
marketing, 42 U.S.C. §§ 300gg-18(a), (b)(1)(A)(ii); see
Amicus Br. of Am. Med. Ass’n et al. 27.
Second, because STLDI plans need not comply with the
ACA’s guaranteed issue and community rating requirements,
insurers can further cut costs by discriminating based on
preexisting conditions, age, or any other factor. While this may
seem to benefit those individuals who qualify for STLDI plans,
cancellation may occur retroactively, resulting in abrupt and
unexpected loss of coverage. Amicus Br. of AARP et al. 15;
Amicus Br. of Am. Med. Ass’n et al. 22–23. For example, one
Arizona woman who enrolled in STLDI was hospitalized with
an abdominal infection a few weeks after receiving emergency
surgery for diverticulitis. Amicus Br. of Am. Med. Ass’n et al.
22. Her insurer treated the diverticulitis as a preexisting
condition and canceled her plan, leaving her with $97,000 in
medical bills. Id. at 22–23. In this respect, as in terms of their
less than comprehensive coverage, STLDI plans may “benefit
8
insurance companies more than the patients who purchase
them.” Id. at 27 (quoting Shelby Livingston, Short-Term
Health Plans Spend Little on Medical Care, MODERN
HEALTHCARE, Aug. 6, 2019).
Third, not only does the use of STLDI as primary health
insurance leave enrollees without congressionally mandated
protections, but it also fractures the “single risk pool” that
Congress deemed critical to the success of the ACA. 42 U.S.C.
§ 18032(c)(1). “The Departments acknowledge[d] that
relatively young, relatively healthy individuals in the middle-
class and upper middle-class” would be “more likely to
purchase” STLDI, which “could lead to adverse selection and
the worsening of the individual market risk pool.” 2018 Final
Rule, 83 Fed. Reg. at 38,235. As a result, the Departments
estimated that unsubsidized premiums for those who remained
in the risk pool for ACA-compliant coverage available through
the Exchanges—disproportionately, older or less healthy
individuals—would increase by 1% in 2019 and 5% in 2028.
Id. at 38,236. In other words, the Rule draws younger, healthier
consumers out of the market for ACA-compliant insurance,
with the predicted result of higher premiums for those who
remain in the risk pool. It thereby directly undermines a central
purpose of the ACA’s “major reforms,” namely to “minimize .
. . adverse selection and broaden the health insurance risk pool
to include healthy individuals, which will lower health
insurance premiums.” King, 135 S. Ct. at 2493 (alteration in
original) (quoting 42 U.S.C. § 18091(2)(I)). It is difficult to
imagine a starker conflict between a statutory scheme and a
rule that purports to administer it.
III.
None of the court’s attempts to defend the Rule as
consistent with the ACA is persuasive. First, the court places
9
considerable weight on the similarity between the 2018 Final
Rule and a prior rule defining “short-term limited duration
insurance” that was in effect when the ACA was enacted,
suggesting that this similarity is “powerful evidence” that the
Departments’ interpretation is consistent with the statute. Op.
14. To the contrary, there was no reason for Congress to expect
that consumers would begin purchasing STLDI plans as their
primary form of health insurance, considering that when
Congress enacted the ACA, STLDI was simply a product used
to fill gaps in coverage, as the Departments have
acknowledged. See 2018 Final Rule, 83 Fed. Reg. at 38,213.
Second, the court surmises that for individuals who
otherwise would go uninsured, “a barebones STLDI policy is
better than nothing.” Op. 6. Although the Departments
justified the Rule in part as an effort “to reduce the number of
uninsured individuals,” 2018 Final Rule, 83 Fed. Reg. at
38,218, their own data reflect that this was not the primary
anticipated effect of the Rule. Rather, the vast majority of new
enrollees in STLDI plans were expected to switch from
existing coverage. The Departments estimated that by 2028,
enrollment in STLDI plans would increase by 1.4 million,
while “the total number of people with some type of coverage”
would increase by only 0.2 million. Id. at 38,236. That is, only
approximately one in seven individuals enrolling in STLDI by
2028 otherwise would be uninsured. The central issue, then, is
not whether an STLDI plan is better than nothing, but whether
such a policy is an appropriate substitute for a plan offering the
comprehensive coverage and fair access that Congress deemed
essential. Unless Congress amends the ACA’s central
provisions or repeals the statute, that decision is not left to the
Departments or to individual consumers.
Third, the court brushes aside the Departments’ own
estimate that the Rule would increase premiums for ACA-
10
compliant coverage by 5% within a decade by stating that this
predicted impact, confirmed by experience since the Rule took
effect, is “relatively small.” Op. 17. By this logic, the
Executive Branch may incrementally chip away at a statute by
promulgating rules that undermine the statutory scheme, so
long as the effect of each regulatory action is sufficiently
modest. When an agency prioritizes its own policy objectives
over those that Congress enacted, as occurred here, this court
necessarily must conclude that the agency’s action was
arbitrary and capricious. See Gresham v. Azar, 950 F.3d 93,
104 (D.C. Cir. 2020).
In sum, “[e]ven under under Chevron’s deferential
framework, . . . reasonable statutory interpretation must
account for both ‘the specific context in which . . . language is
used’ and ‘the broader context of the statute as a whole.’” Util.
Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014) (third
alteration in original) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997)). The Departments’ Rule fails to account
for the specific context in which the term “short-term limited
duration insurance” was used at the time of the ACA’s
enactment, namely to refer to a well-understood insurance
product used to fill gaps in coverage, not to serve as an
individual’s primary form of health insurance. The Rule
further fails to account for the general context of the ACA’s
scheme by undermining the particular “series of interlocking
reforms” included in the statute to ensure fair access to
comprehensive, affordable medical coverage and recreating the
same problems in the health insurance market that the ACA
was designed to solve. King, 135 S. Ct. at 2485. Accordingly,
I respectfully dissent.
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21 Ariz. App. 87 (1973)
515 P.2d 1185
The STATE of Arizona, Appellee,
v.
Robert Earl MAYES, Appellant.
No. 2 CA-CR 332.
Court of Appeals of Arizona, Division 2.
November 12, 1973.
Rehearing Denied December 19, 1973.
Review Granted January 22, 1974.
Gary K. Nelson, Atty. Gen., by John S. O'Dowd and Howard L. Fell, Asst. Attys. Gen., Tucson, and Frank Leto, Certified Third Year Law Student under Rule 25e, for appellee.
Ed Bolding, Pima County Public Defender by Wm. G. Lane and Richard Van Duizend, Asst. Public Defenders, Tucson, for appellant.
OPINION
HOWARD, Judge.
On July 12, 1972, appellant-defendant, Robert Earl Mayes, was arrested by two Tucson Police Officers and charged with unlawful possession of dangerous drugs. The facts leading to the arrest taken in the light most favorable to the State are as follows. The officers were walking through Himmel Park when they noticed the defendant who was seated and smoking a hand rolled cigarette. Thinking this cigarette might contain marijuana, the officers started to walk towards the defendant. They testified that as they approached him they concluded by the appearance and smell of the cigarette that it was merely tobacco. Upon reaching the defendant, one of the officers asked him to show some identification.
*88 The officers further testified that when the defendant stood up he weaved a little bit, was unsteady, and his eyes appeared red. The defendant took from three to five minutes to produce some identification. One of the officers then asked him "What are you high on?" The defendant handed the officers a bottle of pills containing dangerous drugs. When asked if he had a prescription for the pills, the defendant answered in the negative whereupon he was arrested.
At trial the pills and the defendant's admission that he had no prescription were allowed into evidence over defendant's objection. The jury found the defendant guilty of possession of dangerous drugs and he was sentenced to four and one-half years in the Arizona State Prison. This appeal followed.
Appellant contends that the trial court should have excluded the pills and his statements to the police officers because they were obtained in violation of his constitutional right against unreasonable searches and seizures. He maintains that at the time the officers accosted him he was "seized" within the meaning of the Fourth Amendment.
"It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
At trial one of the officers was asked: "During the period of time you asked for identification was he free to walk away?" The answer was "No, he was not." We must therefore conclude that appellant had been "seized".
This court in State v. Baltier, 17 Ariz. App. 441, 498 P.2d 515 (1972), adopted the following test to determine whether a forced stop for interrogation or investigative purposes is "reasonable". "There must be a rational suspicion by the police officer that some activity out of the ordinary is or has taken place, some indication to connect the person under suspicion with the unusual activity, and some suggestion that the activity is related to crime." We fail to see how sitting in a park in the middle of the afternoon, smoking what the officers knew was a hand rolled cigarette containing tobacco satisfies this test.
The State contends that because the officers had received information that narcotics transactions were taking place at the park that the Baltier test has been met. We do not agree. "That innocent activity occurs in a high crime area provides no basis for converting innocuous conduct into suspicious conduct." United States v. Mallides, 9 Cir., 473 F.2d 859 (1973). The evidence to which appellant objected should have been excluded.
Appellant also contends that the admission of evidence of a prior felony conviction imposed an unreasonable burden on his right to testify and was a denial of due process. The rule in Arizona is that a witness' credibility may be impeached by a prior felony conviction. This rule was recently upheld in the case of State v. King, 110 Ariz. 361, 514 P.2d 1032 (filed October 9, 1973). The admissibility of a prior conviction for impeachment purposes is generally left to the sound discretion of the trial court, taking into account such factors as the length of time which has elapsed, the length of the former imprisonment, subsequent conduct and present age of the witness, intervening circumstances and the nature of the prior offense. State v. King, supra. This rule has been justly criticized. McCormick on Evidence § 43.[1] At common law the conviction of a person for an infamous crime rendered the convicted person altogether incompetent as a witness. *89 This illogical and draconian rule has been eliminated by statute in practically all the common law world. Although one who had been convicted of a felony is now competent to testify in court, the prior conviction can be used to impeach him. The prevailing rule can be and is highly prejudicial. As stated by McCormick on Evidence, supra, page 93:
"The sharpest and most prejudicial impact of the practice of impeachment by conviction ... is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a `record' of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility. This places the accused, who has a `record' but who thinks he has a defense to the present charge, in a grievous dilemma. If he stays off the stand his silence alone will prompt the jury to believe him guilty. If he elects to testify, his `record' becomes provable to impeach him, and this again is likely to doom his defense. Where does the balance of justice lie? ..."
The danger that a person will be convicted on the basis of his past record introduced for impeachment purposes rather than on the factual situation of the present case is more real than illusory. As stated by Justice Jackson in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949), "the naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be an unmitigated fiction." Jury examinations conducted by the University of Chicago indicate that jurors do not segregate evidence introduced for impeachment purposes. These tests disclose that jurors have an almost universal inability and/or unwillingness either to understand or follow the court's instructions on the use of a defendant's prior criminal record for impeachment purposes. The jurors almost universally use the defendant's record to conclude that he was a "bad man" and hence was more likely than not guilty of the crime for which he was on trial.[2] To inform the jury in a rape case that the defendant has a prior rape conviction and then instruct them to consider the conviction only in evaluating the defendant's credibility is to recommend "a mental gymnastic which is beyond, not only their powers, but anybody's else."[3] As the United States Supreme Court stated in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968):
"... there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."
In State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971), the Supreme Court of Hawaii stated:
"It has long been recognized that every criminal defendant has a right to testify in his own defense. That right is `basic in our system of jurisprudence' and implicitly guaranteed by the Due Process Clause of the Fourteenth *90 Amendment. [citations omitted] While technically the defendant with prior convictions may still be free to testify, the admission of prior convictions to impeach credibility `is a penalty imposed by courts for exercising a constitutional privilege.' [citation omitted] That penalty `cuts down on' the right to testify `by making its assertion costly.' [citation omitted] ..."
If there was some value outweighing the burden imposed on the defendant's right to testify, the admission of prior crimes to impeach credibility could be sanctioned. It is apparent that prior convictions are of little real assistance to the jury in determining whether the defendant is credible as a witness. When the prior crime has nothing to do with dishonesty, there may be no logical connection whatsoever between the prior crime and the determination of whether the defendant may be believed. Since the jury is presumably qualified to determine whether or not a witness is lying from his demeanor and his reaction to probing on cross-examination, there would appear to be little need for evidence of prior convictions. Thorough cross-examination as to the facts should be able to raise doubts not merely about the defendant's general truthfulness, but more importantly, about the credibility of the story he has told in a particular case.
The impeachment rule cannot be justified by the defendant's freedom to keep out the damaging evidence by staying off the stand, for that freedom is limited by his desire to prove his innocence as well as by fear of the inference that is likely to arise from failure to testify. By threatening the defendant with the introduction of prior convictions, the rule creates the danger of unjust convictions either directly through the effect of such evidence on the jury or indirectly by keeping the defendant off the stand. Furthermore, it allows the introduction of prior criminal conduct that is directly relevant neither to propensity nor to credibility, and consequently can only be unfairly prejudicial.
In State v. Santiago, supra, the Supreme Court of Hawaii held that the introduction of prior convictions in a criminal case to prove the defendant's testimony is not credible violates the Fourteenth Amendment of the United States Constitution. A more moderate view would be to allow into evidence for impeachment purposes convictions of crimes involving dishonesty and false statements, such as uttering forged instruments, bribery, suppression of evidence, false pretenses, cheating and embezzlement. The rule as it now stands creates a fairytale world of judicial legerdemain. Since we are not in a position to overrule our Supreme Court, we urge a serious reexamination of the rule.
Since, as hereinabove indicated, the admission into evidence of appellant's statements and the bottle of pills was erroneous, reversal is required.
Reversed.
KRUCKER, J., concurs.
HATHAWAY, Chief Judge (specially concurring).
Because of the majority's observations concerning the admission of evidence of a prior felony conviction, I concur specially. I agree with the result and the ratio decidendi therefor.
It is my view that the trial court is not strait-jacketed on the question of the admission of evidence of a prior felony conviction, but indeed has discretion with reference to its reflection upon one's credibility. In considering the prior conviction's usefulness for the purpose offered, its remoteness, State v. King, 110 Ariz. 361, 514 P.2d 1032 (filed October 9, 1973), and the nature of the prior offense are to be taken into account. State v. Ross, 107 Ariz. 240, 485 P.2d 810 (1971). It further strikes me as inappropriate to criticize an asserted rule when the case has been reversed on another point. The commentary is sheer gratis dictum on a question that has become moot.
NOTES
[1] See also, Comment "Other Crimes Evidence at Trial: Of Balancing and Other Matters," 70 Yale Law Journal 763, 778 (1961); Note, "Procedural Protections of the Criminal Defendant a Re-evaluation of the Privilege Against Self Incrimination and a Rule Excluding Evidence of Propensity to Commit Crime", 78 Harvard Law Review 426, 440 (1964).
[2] Letter from Dale W. Broeder, Associate Professor, The University of Nebraska, College of Law, who conducted intensive jury interviews, to Yale Law Journal, dated March 14, 1960, on file in the Law Yale Library. See also a letter from Harry Kalven, Jr., Professor, The University of Chicago Law School, who also conducted the interviews, dated March 7, 1960, on file in the Yale Law Library (our data `suggests that the jury, like everybody else, had enormous difficulty in understanding what it means to use evidence on impeachment only and not on guilt.').
[3] Justice Learned Hand in Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir.1932).
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765 F.Supp. 297 (1991)
Robert L. PERCELL, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES, INC., Defendant.
No. 90-538-CIV-5-D.
United States District Court, E.D. North Carolina, Raleigh Division.
May 16, 1991.
*298 Robert J. Willis, Avery & Jones, Raleigh, N.C., for plaintiff.
Howard Edward Manning, Jr., Michael T. Medford, Manning, Fulton & Skinner, Raleigh, N.C., for defendant.
ORDER
DUPREE, District Judge.
Plaintiff originally filed this action in the Wake County Superior Court alleging that he was discharged from his employment as a tool and model maker due to his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After defendant removed the action to this court, plaintiff filed a motion to amend the complaint to add causes of action for racially discriminatory discharge under 42 U.S.C. § 1981 and for wrongful discharge in bad faith under North Carolina common law. Defendant did not oppose the motion to amend but reserved the right to move to dismiss the proposed additional claims under F.R.Civ.P. 12(b)(6). The action is currently before the court on defendant's motion to dismiss the amended complaint to the extent that plaintiff purports to state claims under 42 U.S.C. § 1981 and for wrongful discharge. Also pending is an appeal by plaintiff of the magistrate judge's order of April 29, 1991 extending discovery until June 30, 1991.
I. FACTS
For the purposes of ruling on defendant's motion to dismiss, the allegations of plaintiff's amended complaint will be accepted as true. Plaintiff was employed with defendant from July 1974 until August 1989, initially as a machine operator and for the last eight to ten years as a tool and model maker. Throughout the period of plaintiff's employment, defendant had a written "open door policy" which gave all employees the right to appeal the decisions of immediate supervisors to higher level management. Plaintiff alleges that in January 1989, he exercised his rights under the open door policy to appeal the decision of David Geil, plaintiff's immediate supervisor, with respect to Geil's failure to allow plaintiff to transfer to a different work location. Plaintiff alleges that after he exercised his rights under the open door policy, he began to receive repeated negative performance evaluations and inspection reports from defendant's management. As a result of the volume of notices of *299 substandard work performance, plaintiff was discharged on August 15, 1989.
Plaintiff alleges that his termination was based on race since white tool and model makers performing at the same level of quality and speed who had exercised their open door policy rights were given fewer negative evaluations and inspection reports and were not discharged. Alternatively, plaintiff alleges that his discharge was motivated by bad faith or an intent to retaliate against plaintiff for exercising his rights under the open door policy.
II. CLAIM UNDER 42 U.S.C. § 1981
Defendant argues persuasively that since plaintiff complains only about the termination of his employment, he cannot maintain a claim under 42 U.S.C. § 1981. Defendant points out that the Fourth Circuit has ruled with the majority of the courts of appeals in holding that under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), "discriminatory discharge claims are not actionable under section 1981." Williams v. First Union National Bank of N.C., 920 F.2d 232, 234 (4th Cir.1990).
Plaintiff acknowledges the Williams decision, but argues that it was wrongly decided. Plaintiff continues to rely on Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990) (finding discriminatory discharge claim actionable under Section 1981), a decision cited and rejected by the Fourth Circuit in Williams. Because this court is bound to follow Fourth Circuit precedent, defendant's motion to dismiss the amended complaint to the extent that it purports to state a claim under 42 U.S.C. § 1981 is granted.
III. WRONGFUL DISCHARGE CLAIM
Defendant also moves to dismiss the amended complaint to the extent that it purports to state a claim for wrongful discharge under North Carolina law, arguing that the facts of plaintiff's case do not fit within the narrow exception to the employment at-will doctrine created by the North Carolina Supreme Court in Coman v. Thomas Manufacturing Company, 325 N.C. 172, 381 S.E.2d 445 (1989). Prior to Coman, North Carolina courts generally followed the rule that a person without a definite term of employment was employed at will and could be discharged without reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). In Coman, a truck driver alleged that he was discharged for his refusal to falsify federally required time and mileage logs. The North Carolina Supreme Court reversed the dismissal of the truck driver's wrongful discharge suit and adopted the holding of Sides v. Duke University, 74 N.C.App. 331, 342, 328 S.E.2d 818, review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), that "while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy." Coman, 325 N.C. at 175, 381 S.E.2d 445. In Sides, the North Carolina Court of Appeals had reinstated a wrongful discharge claim based on allegations that the plaintiff had been discharged for refusing to testify untruthfully in a lawsuit against her employer.
Since Coman, a limited number of published decisions have discussed the scope of North Carolina's exception to the employment at-will doctrine. In McLaughlin v. Barclays American Corporation, 95 N.C. App. 301, 382 S.E.2d 836, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989), the North Carolina Court of Appeals refused to allow a wrongful discharge action by an employee claiming that he was terminated for attempting to defend himself in a fight provoked by another employee. The court reasoned that a discharge resulting from the employee's use of self-defense did not implicate public policy as envisioned by Coman and though perhaps illogical did not demonstrate bad faith. Id. 95 N.C.App. at 306-07, 382 S.E.2d 836. In Harrison v. Edison Brothers Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991), the plaintiff was permitted to proceed with her wrongful discharge action based on allegations that she was fired for refusing to accede to the sexual demands of the manager at the *300 store where she worked, which the Fourth Circuit stated was analogous to requiring plaintiff to engage in prostitution in order to retain her job. Most recently, in Amos v. Oakdale Knitting Company, 102 N.C. App. 782, 403 S.E.2d 565 (1991), an action brought by employees who were fired for refusing to accept less than the minimum wage, the North Carolina Court of Appeals affirmed the dismissal of a wrongful discharge action on the grounds that the employees had other statutory remedies available to them.
Turning to the case at hand, plaintiff argues that his discharge in retaliation for exercising his rights under defendant's open door policy violates North Carolina's public policy. Using the analysis suggested by a law review article, plaintiff argues that it would be against public policy to allow an employer to terminate an employee for appealing a supervisor's decision when the employer's policy had encouraged employees to make such appeals without fear of retribution. See Parker, North Carolina Employment Law After Coman: Reaffirming Basic Rights in the Workplace, 24 Wake Forest L.Rev. 905, 909-914 (1989).
However, the court finds that the question of how defendant handled appeals of management decisions is not a matter which implicates general public policy concerns and is instead largely a matter of interest only to the private parties involved. In so ruling, the court finds persuasive the reasoning of the North Carolina Court of Appeals in McLaughlin, stating that:
In each case, our courts focused on the potential harm to the public at large.... Similar public-policy implications are not present in [plaintiff's] case. We do not perceive the kind of deleterious consequences for the general public, if we uphold [defendant's] action, as might have resulted from decisions favorable to the employers in Sides and Coman.
McLaughlin, 95 N.C.App. at 306, 382 S.E.2d 836.
A closer question is presented by plaintiff's argument that his termination was in violation of North Carolina's public policy against race discrimination as embodied by the North Carolina Equal Employment Practices Act. That Act provides in part that:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment foments domestic strife and unrest, deprives the State of the fullest utilization of its capacities for advancement and development, and substantially and adversely affects the interests of employees, employers, and the public in general.
N.C.G.S. § 143-422.2
The issue for decision here is whether the North Carolina courts, in recognizing a cause of action for wrongful discharge in violation of public policy, intended to allow claims based on a statute in which the legislature acknowledged a public policy against employment discrimination but chose not to provide aggrieved employees with a private right of action beyond that already afforded by federal discrimination statutes. Approval of such a cause of action would likely result in a pendent state claim for wrongful discharge in violation of public policy being attached to virtually every employment discrimination suit filed. Moreover, employees making such claims would not be subject to the strict exhaustion of remedies provisions of current statutes and could arguably be entitled to tort damages beyond those allowed under existing law. 3A A. Larson, Employment Discrimination § 121.220-121.23 (1991).
Because the employment at-will doctrine is a judicially adopted rule, it is the province of the courts to delineate the scope of that rule. McLaughlin, 95 N.C.App. at 307, 382 S.E.2d 836; Coman, 325 N.C. at 177 n. 3, 381 S.E.2d 445. The North Carolina Supreme Court, in commenting on the effect of Coman, stated that the employment *301 at-will doctrine has "been narrowly eroded by statutory and public policy limitations on its scope." Burgess v. Your House of Raleigh, 326 N.C. 205, 210, 388 S.E.2d 134 (1990) (emphasis added). After careful review of the cases discussing wrongful discharge under North Carolina law, the court finds no intent to expand the public policy exception to the employment at-will doctrine to allow claims for wrongful discharge in violation of public policy based on the public policy embodied in the North Carolina Equal Employment Practices Act.
The common thread running through all cases under North Carolina law which have allowed claims for wrongful discharge in violation of public policy is a desire to prevent employees from being faced with a choice between committing an act which is harmful to the public interest or losing their jobs. For example, the court in Sides stated that, "[t]o hold that one's continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and would serve to contaminate the honest administration of public affairs." Sides, 74 N.C.App. at 340, 328 S.E.2d 818, quoting Petermann v. International Brotherhood, 174 Cal.App.2d 184, 344 P.2d 25 (1959). The Sides court then went on to cite cases from other jurisdictions supporting a tort action for employees discharged for socially undesirable reasons, all of which involved employees who had been terminated either for refusing to commit an act harmful to the public interest or for insisting on performing a duty that the public interest required. See Sides, 74 N.C.App. at 341, 328 S.E.2d 818. Similarly, in Coman, the North Carolina Supreme Court held that:
Where the public policy providing for the safety of the traveling public is involved, we find it is in the best interest of the state on behalf of its citizens to encourage employees to refrain from violating that public policy at the demand of their employers. Providing employees with a remedy should they be discharged for refusing to violate this public policy supplies that encouragement.
Coman, 325 N.C. at 176, 381 S.E.2d 445.
In Harrison, supra, 924 F.2d at 533, the Fourth Circuit noted that "the only ... successful wrongful discharge plaintiffs we find in reported North Carolina cases have had to choose between their jobs and violating the criminal law." Under current case law, a question remains as to whether the North Carolina courts would allow a wrongful discharge action where an employee is terminated for refusing to perform a non-criminal act that violates a well established public policy. Nevertheless, there is no indication that the public policy exception would extend to cases such as the present one, where the only violation of public policy was the allegedly wrongful discharge itself and the situation did not encourage conduct harmful to the public interest.
Some jurisdictions which have considered the issue have allowed claims for wrongful discharge in violation of public policy based on the public policy of discrimination statutes, see, e.g., Alder v. Columbia Historical Society, 690 F.Supp. 9, 16-17 (D.D.C. 1988), but the majority of courts have held that such claims are not actionable. Larson, supra § 121.10 and cases cited at n. 4. In a case interpreting Maryland law, the Fourth Circuit held that the Maryland courts would not allow a common law claim for wrongful discharge premised solely on a violation of the state's policy against sex discrimination. Parlato v. Abbott Laboratories, 850 F.2d 203, 206-07 (4th Cir.1988). Like the North Carolina Equal Employment Practices Act, the Maryland discrimination statutes do not allow a private right of action, although Maryland does provide a stronger scheme of administrative remedies. Id. at 205. See also Childers v. Chesapeake and Potomac Telephone Company, 881 F.2d 1259, 1265 (4th Cir. 1989).
Additionally, it appears that the North Carolina courts would not allow a wrongful discharge claim where the employee can pursue a statutory remedy in state court. In refusing to allow plaintiffs in Amos to *302 proceed under a wrongful discharge theory, the North Carolina Court of Appeals stated that:
The legislature having expressed its intent, however, we decline to extend the public policy exception to the employment at will doctrine to afford a cause of action in addition to that provided by statute. Relegating an employee to his statutory remedy is, in our view, a sound policy where, as here, the employee has not been required to engage in unlawful conduct and the employer's statutory violation does not threaten the public safety.
Amos, 102 N.C.App. at 786, 403 S.E.2d 565. In Coman, the North Carolina Supreme Court held that although plaintiff may have had some additional remedy in the federal courts, the North Carolina courts were required by the open courts clause of the state constitution to provide a forum for relief. Coman, 325 N.C. at 174, 381 S.E.2d 445. In the present case, although the statutory remedy available to plaintiff is a federal one, plaintiff has been afforded a state court forum through the state's exercise of concurrent jurisdiction over Title VII claims. See Yellow Freight System, Inc. v. Donnelly, ___ U.S. ___, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (holding that federal courts do not have exclusive jurisdiction over civil actions brought under Title VII).
While the North Carolina courts have not yet addressed the precise issue presented here, there is no evidence that they would expand the narrow exception to the employment at-will doctrine to cover virtually every employment discrimination action. In enacting the Equal Employment Practices Act, the North Carolina legislature chose not to provide any remedies beyond those available under federal discrimination statutes. Spagnuolo v. Whirlpool Corporation, 467 F.Supp. 364, 365 (W.D.N.C.1979). It is unlikely that the North Carolina courts would disturb this legislative decision by providing a common law remedy for wrongful discharge beyond the procedure envisioned by Title VII. See Parker, supra at 929.
In the alternative to his claim that his discharge fell within the public policy exception to the employment at-will doctrine, plaintiff argues that Coman established the existence of a separate cause of action for "wrongful discharge in bad faith" under North Carolina law. In support of his argument, plaintiff points out that following the discussion of public policy in Coman, the North Carolina Supreme Court went on to address the separate issue of bad faith, stating that, "[b]ad faith conduct should not be tolerated in employment relations, just as it is not accepted in other commercial relationships." Coman, 325 N.C. at 176-77, 381 S.E.2d 445. Plaintiff also asserts that the claim of bad faith discharge is supported by McLaughlin, wherein the North Carolina Court of Appeals separately discussed bad faith after finding that the plaintiff in that case had not stated a claim for wrongful discharge in violation of public policy. McLaughlin, 95 N.C.App. at 306-07, 382 S.E.2d 836.
However, this court recently addressed the issue of whether North Carolina courts would allow a cause of action for bad faith discharge and found that such a claim is not cognizable under North Carolina law. For a full discussion, see English v. General Electric Company, 765 F.Supp. 293 (E.D.N.C.1991). Accordingly, plaintiff is not entitled to proceed under a theory that his termination was in bad faith.
IV. APPEAL OF ORDER EXTENDING DISCOVERY
Plaintiff has appealed the magistrate judge's order of April 29, 1991 which extended discovery until June 30, 1991. Plaintiff, with the consent of defendant, had requested that discovery be extended to a date following sixty days after the date on which this court entered a final order with respect to plaintiff's first motion to compel discovery. Plaintiff now complains that the June 30, 1991 discovery deadline will not allow adequate time for discovery. The reason that the magistrate judge selected a firm date of June 30 for the close of discovery rather than the floating *303 date suggested by plaintiff is simply that the court's internal docketing and calendaring procedures require discovery dates to be set with specificity. The court has no intention of denying plaintiff time for discovery to which he is entitled. Accordingly, the order of the magistrate judge extending discovery until June 30, 1991 is affirmed, with the provision that either party is entitled to move for a further extension of the discovery period if additional time is warranted.
V. CONCLUSION
Based on the foregoing, the court finds that the amendments to plaintiff's complaint fail to state a claim upon which relief can be granted. Accordingly, defendant's motion to dismiss the amended complaint to the extent that plaintiff purports to state claims under 42 U.S.C. § 1981 and for wrongful discharge under North Carolina common law is granted. Additionally, plaintiff's appeal of the magistrate judge's order of April 29, 1991 extending discovery until June 30, 1991 is denied and the order is affirmed. The action will proceed on plaintiff's remaining claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
SO ORDERED.
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652 F.Supp. 106 (1986)
David J. CONLEY, Petitioner,
v.
R.D. BREWER, Respondent.
No. 85-C-826-C.
United States District Court, W.D. Wisconsin.
July 29, 1986.
*107 David J. Conley, pro se.
Jeffrey Anderson, Asst. U.S. Atty., Madison, Wis., for respondent.
CRABB, Chief Judge.
This is a petition for a writ of habeas corpus. Petitioner, an inmate at the Federal Correctional Institution at Oxford, Wisconsin, claims that his confinement is being prolonged in violation of the Constitution and the laws of the United States. 28 U.S.C. § 2241. Petitioner claims that the good time credits he accumulated while in prison before his release on parole were confiscated without notice or a hearing in violation of due process.
From the documentary record produced by the parties, I find the following facts.
FACTS
On June 11, 1980 petitioner was sentenced to a 15 year term of confinement on bank robbery charges in the District of Minnesota. Petitioner was credited with approximately 200 days of presentence confinement.[1] While serving his sentence, petitioner was credited with both statutory and extra good time, pursuant to 18 U.S.C. §§ 4161 and 4162 (1982).[2] Prior to the time that petitioner's accumulated good time credits mandated release "as if" on parole under 18 U.S.C. §§ 4163 and 4164 (1982), he was paroled by the United States Parole Commission on January 11, 1981. Upon his release, petitioner had 3,601 days remaining on his sentence.
On June 12, 1980, the United States Parole Commission issued a warrant for petitioner's arrest for violating the conditions of his parole. The warrant application was executed on January 20, 1984, at which time petitioner was placed in federal custody at the Federal Correctional Institution at Oxford, Wisconsin. The warrant application informed petitioner of the charges against him and stated that the commission could, after a revocation hearing, "revoke your parole or mandatory release, in which case the Commission will also decide when to consider you for further release."
In a Notice of Action dated July 20, 1982, the commission ordered that petitioner's parole be revoked, that none of the time petitioner spent on parole be credited, that the unexpired portion of his federal sentence commence upon his release from state custody, and that petitioner's confinement continue to the expiration of his sentence.
After a hearing on May 23, 1984, the commission issued a Notice of Action reaffirming its order that petitioner "[c]ontinue to expiration."
Petitioner presently is serving his violator term of 3,601 days. The Bureau of Prisons has computed a mandatory release date of December 10, 1989, which does not *108 take into account the good time credit that petitioner earned before his release on parole.
OPINION
Petitioner asserts that he was not advised that his signature on a parole release form would result in the loss of good time credits earned during his original term. He maintains that he did not waive his right to these credits by signing his parole release form, and that the confiscation of the credits without a forfeiture hearing violated due process.
Respondent argues that petitioner's good time credits expired upon his release on parole, leaving nothing to be forfeited. Respondent advanced the identical argument in the case of Hill v. Brewer, 653 F.Supp. 15 (W.D.Wis.1985). In an opinion in that case, I rejected respondent's view of what happens to good time as one that found no support in the law, in legislative history, or in the practice of the United States Parole Commission of the Bureau of Prisons. Finding no regulation or program statement that enacted respondent's interpretation of the statutes, I concluded that paroled prisoners retained their pre-release good time credits. As the current parole statutes are silent on the question whether parole revocation results in an automatic forfeiture of such credits, I consulted the previous statutes, and concluded that the end result of the statutory scheme was a power in the parole board to forfeit good time credits at its discretion; while forfeiture may have been mandatory under the former 18 U.S.C. § 4205, 18 U.S.C. § 4207 gave the board authority to restore the credits by requiring the revoked parolee "to serve all or any part of the remainder of the term for which he was sentenced."[2]
Respondent argues that Hill was wrongly decided and should not be followed in this case. As additional support for his argument that good time is "used up" upon parole release, respondent cites parole regulations and Bureau of Prison program statements that were not discussed in the briefs in Hill.
First, respondent cites 28 C.F.R. § 2.40 (1974), a former parole regulation that was in effect prior to a major revision of parole regulations in 1974. That regulation provided that a prisoner whose parole had been revoked "may be required to serve all or any part of the remainder of the term for which he was sentenced less such good time as he may earn following his recommitment."
Next, respondent refers the court to a May 29, 1979 Bureau of Prisons program statement providing that
The SGT [statutory good time] will be awarded at the same rate as the original sentence and awarded only for the amount of time remaining to be served between the date the warrant was executed and the full term date.
Bureau of Prisons Program Statement 5050.9 CN-1 § 5(h)(4) (May 29, 1979).
Viewed separately, these provisions add little to respondent's argument that good time credits are "used up" when a prisoner is released on parole. The "all or any part" language of 28 C.F.R. § 2.40 (1970) is identical to that of the former 18 U.S.C. § 4207, a statute I interpreted as giving the parole board discretion to restore the pre-parole good time credits of parole violators. While both provisions cited by respondent reflect a policy that a parole violator's term may be shortened only by good time earned following his recommitment, they do not explain whether pre-parole good time expires upon parole release or whether it is forfeited upon parole revocation.
Finally, respondent points to an explanatory statement accompanying an interpretive regulation issued by the parole commission after the decision in Hill. Effective November 7, 1985, the parole commission *109 amended its regulations to codify its interpretation of the interaction between the prison good time statutes, 18 U.S.C. § 4161 et seq., and the parole statutes, 18 U.S.C. § 4201 et seq. The commission's interpretive regulation reflects the commission's position that pre-parole good time expires upon a prisoner's release. The regulation states
It is the Commission's interpretation of the statutory scheme for parole and good time that the only function of good time credits is to determine the point in a prisoner's sentence when, in the absence of parole, the prisoner is to be conditionally released on supervision.... Once an offender is conditionally released from imprisonment either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole mandatory release.
28 C.F.R. § 2.35(b), as amended, 50 Fed. Reg. 46,282 (November 7, 1985).
The explanatory statement accompanying these regulations states that
[t]his amendment does not amount to a new interpretation by the Parole Commission. Rather, it formalizes the longstanding interpretation of the parole and good time laws by the Commission and its predecessor the U.S. Board of Parole. The practice of the federal paroling authorities and the Bureau of Prisons for many years has been to treat previously earned good time as being "used up" once a prisoner is placed on supervision by parole or mandatory release.
50 Fed.Reg. 46,282 (October 17, 1985).
In Hill, I questioned respondent's argument that good time was "used up" upon release, observing that the government frequently took the position that pre-release good time credits could be forfeited as a consequence of parole revocation. Hill v. Brewer, slip op. at 5-6. The commission's explanatory statement addresses this apparent inconsistency, explaining that while courts have occasionally characterized the loss of such credits as "forfeiture," it has not been the commission's practice to make specific orders on the forfeiture of pre-parole good time. Under the commission's interpretation of the statutes under which it operates, the decision to forfeit previously earned good time credits at a parole revocation hearing "is not provided for as one of the decisions the Commission is statutorily obliged or authorized to make." 50 Fed.Reg. 46,283.
In the commission's view, the former parole statutes did not give the parole board authority to restore the pre-release good time credits of parole violators. Instead, the "all or any part" language of the former 18 U.S.C. § 4207 was intended to authorize the parole board to re-parole the offender during his violator term.
"Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time." United States v. Clark, 454 U.S. 555, 565, 102 S.Ct. 805, 811, 70 L.Ed.2d 768 (1982). When Congress has spoken precisely on a particular question, the courts must give effect to that clearly expressed congressional intent. However, when a statutory scheme is silent or ambiguous about a specific issue, the court must ask whether the agency's position is based on a "permissible construction" of the statute. Chevron, USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).
In the statement accompanying its new interpretive regulation, the parole commission states that it and its predecessor, the parole board, have consistently treated pre-parole good time credits as "used up" once a prisoner is placed on supervision by parole or mandatory release. As previously noted, the good time and parole statutes do not state clearly that good time credits expire upon parole release. Moreover, the statutes are susceptible to conflicting interpretations about *110 the effect and duration of pre-parole good time credit. Consequently, it is not this court's role to interpret the statute as it thinks best, but rather to uphold the commission's interpretation of the statutory scheme, even if other reasonable interpretations exist or if a different construction appears wiser. FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981).
In light of the statement accompanying the parole commission's new interpretive regulation, I am unable to conclude that the commission's interpretation of the good time and parole statutes is an unreasonable one. The complex history of the parole and good time statutes and the absence of explicit language in current laws about the effect of parole release on good time make this issue a close question. Taking into consideration the commission's statement that it has not been its practice to order forfeiture of good time upon parole revocation, I conclude that the interpretation of good time as "used up" upon parole release is reasonable.
Under the commission's interpretation of the parole and good time statutes, petitioner's due process arguments must fail. Once it is determined that the sole function of good time is to determine the date of a prisoner's conditional release it cannot be said that a paroled prisoner has a vested right in pre-parole good time. Although petitioner may not have been informed that his signing a parole release form would nullify his accumulated good time credit, his parole officer's silence on this subject does not implicate due process.[3] Furthermore, when the statutes are construed as dictating that pre-parole good time credits expire upon release, it follows that the parole commission has no constitutional or statutory obligation to notify parolees that their good time will be unavailable to them if they are returned to prison to serve a parole violation term.
ORDER
IT IS ORDERED that the opinion entered in Hill v. Brewer, 85-C-826-C is REVERSED and that the current petition for a writ of habeas corpus is DISMISSED.
NOTES
[1] Petitioner's sentence computation record tabulates his presentence jail credit at 202 days. In his petition, petitioner states that he was credited with 217 days of presentence confinement.
[2] The documents submitted by respondent contain no record of the good time credits petitioner accumulated. Petitioner alleges that he had accumulated approximately 620 days of statutory good time and 200 days of meritorious good time.
[2] In 1976 the parole statutes were rewritten, and the parole commission was created to replace the parole board.
[3] Parole Commission regulations provide that a prisoner who has been granted a parole date may refuse to sign the parole certificate. 28 C.F.R. § 2.40(h). An inmate who refuses his parole will be released pursuant to 18 U.S.C. §§ 4161-4164 on a date determined by his accrued good time credits.
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Clark v. Clark
IN THE
TENTH COURT OF APPEALS
No. 10-94-214-CV
DOUGLAS EUGENE CLARK,
Appellant
v.
GERALDINE MOORE CLARK ROCHE,
Appellee
From the County Court
Ellis County, Texas
Trial Court # 50894-CC
O P I N I O N
This is an appeal by Appellant Douglas Clark from an order of the trial court finding
Appellee Geraldine Clark [Roche] not in contempt and denying Appellant's motion to enforce.
Appellant and Appellee were divorced in California in 1987. They had two children: Kristine
(d.o.b. 12-28-79) and Nicole (d.o.b. 7-2-82). Appellant and Appellee were granted joint-legal
custody with Appellee having physical custody and Appellant having visitation.
In 1992 both
Appellant and Appellee had moved to Minnesota where issues of residence, custody and visitation
were litigated between the parties. On August 5, 1993, the Minnesota court entered an order (1)
granting Appellee continued custody of the two children; (2) authorizing Appellee to move the
children from Minnesota to Texas; and (3) fixing Appellant's visitation on the first, third, and
fourth weekends of every month plus telephone contact any day between 4:00 P.M. and 5:00
P.M., plus the children could call Appellant collect at any time.
Appellant and Appellee both moved to Texas, Appellant taking up residence in Cedar Hill in
Dallas County, and Appellee taking up residence in Red Oak in Ellis County.
On November 8, 1993, Appellant filed a "Motion for Enforcement" of the August 5, 1993,
Minnesota court order, alleging Appellee did not comply with same by refusing to allow Appellant
possession and access to the children on the weekends of August 7, 21, and 28; September 4, 18,
and 25; October 2, 16, and 23; and November 6, 1993; and refused to allow him to see the
children on the weekends of May 15 and 22 and June 5 and 19, 1993, to which he was entitled
under a February 18, 1993, Minnesota court order. Appellant further alleged that Appellee
blocked all telephone communication between him and the two children.
Appellant requested Appellee "be held in contempt, jailed, and fined for each count alleged
above." Hearing was held on Appellant's motion on January 4 and 11, 1994. The trial court
entered its order April 14, 1994, denying Appellant's motion for enforcement by contempt.
Appellant appeals on eight points of error.
Point one: "The trial court erred in denying Appellant's motion for enforcement by contempt,
and in refusing to enforce a prior court order because in so doing the trial court has taken away
Appellant's right to access and/or possession without finding that Appellant's parental rights
should be terminated."
Point two: "The trial court erred in denying Appellant's motion for enforcement only on the
testimony of the children that they were afraid of [Appellant] and did not want to see him."
Point three: "The trial court erred in failing to hold Appellee in contempt because Appellee
failed to facilitate the court's order and did not attempt to abide by the court order."
Appellant's right to visitation under the August 5, 1993, order was on the first, third, and
fourth weekends, plus telephone contact on any day between 4:00 P.M. and 5:00 P.M.
Appellant's motion to hold Appellee in contempt alleged Appellee refused to allow Appellant
possession of the children on the weekends of May 15 and May 22, June 5 and June 10, August
7, 21, and 28, September 4, 18, and 25, October 2, 16, and 23, and November 6, 1993.
Appellant testified he had not seen his children from May 6 through August 5; that he
attempted to have visitation by knocking on the door and making several phone calls; and that he
has not been able to see his children. He further testified he is on a work furlough from a four-months jail term he received in California; that he is to be confined to his residence when not
working except for four hours on Saturdays. He testified he went to see his children on May 15,
and Appellee refused to let the children go with him; that Appellee called the police and the
children told the officer they did not want to go with Appellant. Appellant admitted he struck his
daughter and there was an assault complaint filed; that he pled guilty and was given a deferred
judgment; that deferred adjudication was in effect until January 15, 1994; that he is serving time
in the Freestone County jail for a plea-bargain spousal-battery charge; and that he has been
charged with assault on a female three times.
Appellee testified that she allowed Appellant visitation at his scheduled times between May
and June 1993; that she allowed Appellant visitation on the May 15 weekend; that Appellant had
his visitation on May 15 and May 22; that on the May 15 visitation Appellant hit Kristine and she
called the police; and that the police were called at the May 22 visitation. Appellee testified
Appellant never came to the house to exercise his visitation between August 7 and November 8,
1993; that she had not stopped the children from seeing Appellant; that Appellant had been able
to exercise his visitation by telephone; that the children are at home three or four hours a day
alone; that the children have told Appellant that they did not want to go with him and the last time
he came, Kristine called the police; that since May Appellant has tried only twice to exercise his
visitation; and that he was on "six-months probation for hitting Kristine."
The trial court interviewed the two girls and stated: "Based on the evidence and based on the
conversation with the two girls, I'm denying the motion to enforce."
The trial court was the judge of the credibility of the witnesses and of the weight to be given
their testimony and was, under the evidence, authorized to deny Appellant's motion.
Points one, two and three are overruled.
Point four: The trial court erred in modifying Appellant's visitation without a live pleading
before the court to do so."
The trial court did not modify Appellant's visitation. The trial court's order of April 14,
1994, states: "Visitation is continued as established in the prior orders of the court."
Point four is overruled.
Point five: "The trial court's ruling against Appellant was clearly based on prejudice."
The record in no way established that the trial court's ruling was based on prejudice.
Point five is overruled.
Point six: "The trial court erred in excluding evidence offered by Appellant."
Appellant asserts the trial court refused to allow Officer Andrews to testify. At trial
Appellant's counsel stated: "We call Officer Andrews. He's at home recovering from surgery.
We can talk to him by phone if the court finds that's all right." The court asked if he was
subpoenaed. Counsel for Appellant said: " He was not subpoenaed, but he said it wasn't
necessary."
The trial court did not err in not permitting an unsubpoenaed person, who was not present t
trial, to testify over the phone.
Point six is overruled.
Point seven: "The trial court erred in denying Appellant's request for an updated
psychological evaluation and/or social study."
There was no duty under the record for the trial court to order an updated social study or
psychological evaluation.
Point seven is overruled.
Point eight: "The trial court erred in denying Appellant's motion to modify out of hand
without any evidence on the motion."
Appellant filed a pro se motion on September 29, 1993, to modify the August 5, 1993, order.
The motion was not a part of this appeal. It just appears in the transcript as filed.
Point eight is overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Thomas,
Justice Cummings, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed October 18, 1995
Do not publish
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506 F.Supp.2d 277 (2007)
ARKANSAS TROPHY HUNTERS ASSOCIATION, INC., Plaintiff,
v.
TEXAS TROPHY HUNTERS ASSOCIATION, LTD., Defendant.
Civil No. 06-5067.
United States District Court, W.D. Arkansas, Fayetteville Division.
February 5, 2007.
*278 *279 R. David Lewis, Little Rock, AR, for Plaintiff.
Charles W. Hanor, Hanor Law Firm, San Antonio, TX, Marie-Bernarde Miller, Gill, Elrod, Ragon, Owen & Sherman, P.A., Little Rock, AR, for Defendant.
ORDER
HENDREN, District Judge.
On the 22nd day of January, 2007, the captioned matter came on for trial to the Court, and from the evidence presented, and the arguments of counsel, the Court finds and orders as follows:
Procedural History
1. In this trademark infringement case, plaintiff claims that defendant has violated the Lanham Act by infringing its trademark, using a false designation of origin, and conducting false advertising, and has engaged in unfair competition under the Arkansas Deceptive Trade Practices Act and Arkansas common law. It seeks injunctive and compensatory relief.
Defendant counterclaims, alleging that plaintiff has engaged in federal statutory, and Arkansas common law, trademark infringement, unfair competition, false designation of origin/palming off[1], and trademark dilution. It seeks declaratory, injunctive, and compensatory relief.
Neither party requested a jury, and the matter was tried to the Court.
Findings of Fact
2. The Court makes the following findings of fact:
* In 2003, several Arkansas hunters formed an organization they called the Arkansas Trophy Hunters Association ("ATHA"), which is the plaintiff in this lawsuit. The goals of the organization centered on various hunting and fishing activities.
* The organizers of ATHA were aware of the existence of a Texas group known as the Texas Trophy Hunters Association ("TTHA"), a Texas-based hunting organization which is the defendant herein. TTHA engages in a variety of activities, particularly the sponsorship of trade shows and the publication of a magazine, The Journal of the Texas Trophy Hunters.
* ATHA was incorporated in Arkansas on February 6, 2003.
* Between its formation and March, 2006, ATHA had a few meetings, acquired a few members, held a few fish fries, sponsored a few hunts, and filmed a few hunts. It developed a logo and had some shirts, hats and window decals made up with the logo on them, some of which the members wore or used themselves and some of which they gave away. It had a website which was sometimes operational, sometimes not. It appears never to have been a financially viable business, nor a particularly vigorous one, but it continued to exist.
*280 * In the Fall of 2005, TTHA, which had been in business in Texas for some 30 years, decided to set up an Arkansas group using the name Arkansas Trophy Hunters Association.[2] Like ATHA, TTHA did some investigation to determine if its proposed name was already being used in Arkansas, and concluded that it was not. They then launched a large and well-funded marketing effort, including the production of logo-bearing hats, shirts and other give-aways; a mail-out soliciting membership; and plans for a trade show, the Hunters Extravaganza, to be held in Fayetteville, Arkansas, on April 28-30, 2006.
* On February 10, 2006, TTHA applied to the United States Patent and Trademark Office ("USPTO") to register the mark "Arkansas Trophy Hunters Association" in International Class 035, for "[a]rranging and conducting trade shows in the field of hunting and outdoor recreational activities."
* On February 14, 2006, TTHA applied to the USPTO to register the mark "Arkansas Trophy Hunters Association" in International Class 016, for "[m]agazines featuring game hunting, fishing, wildlife, and related recreational activities."
* On March 6, 2006, TTHA became aware of the existence of ATHA. Representatives of the two organizations talked, apparently amicably, about the possibility of making some arrangement with regard to the name they were both using, but no conclusions were reached.
* On March 8, 2006, the Arkansas Secretary of State granted TTHA a Certificate of Trademark for the mark "ARKANSAS TROPHY HUNTERS" to use on "[m]agazines featuring game hunting, fishing, wildlife, and related recreational activities."
* On April 13, 2006, ATHA filed this lawsuit, seeking to enjoin the trade show planned to start April 28, 2006. A hearing was promptly held and this Court denied the injunction.
* On May 2, 2006, the Arkansas Secretary of State granted TTHA a Certificate of Service Mark Registration for the mark "ARKANSAS TROPHY HUNTERS ASSOCIATION" for the use of "[a]rranging and conducting trade shows in the field of hunting and outdoor recreational activities."
* On August 1, 2006, the USPTO refused both of TTHA's applications to register the name "Arkansas Trophy Hunters Association" on the Principal Register.[3] The applications were refused on the basis that the mark is merely descriptive. In refusing the Class 035 application, the USPTO noted that "the mark is primarily geographically descriptive of the origin of applicant's services," and that "[t]he addition of a generic or merely descriptive term to a geographic term does not obviate a determination of geographic descriptiveness. . . . Thus the addition of the descriptive wording TROPHY HUNTERS ASSOCIATION for a group of trophy hunters, does not obviate the geographical significance of the term ARKANSAS." In refusing the Class 016 application, the USPTO noted that "the proposed mark *281 merely describes the subject matter of applicant's publication and/or the primary audience for the applicant's publication. . . . the wording ARKANSAS TROPHY HUNTERS ASSOCIATION merely describes the subject matter and/or intended user of the magazine that pertains to a group of trophy hunters in Arkansas."
Conclusions of Law
3. Lanham Act Trademark Infringement Claims:
The Lanham Act, 15 U.S.C. § 1051 et seq. "prohibits the use of a mark in connection with goods or services in a manner that is likely to cause confusion as to the source or sponsorship of the goods or services." Davis v. Walt Disney Co., 430 F.3d 901 (8th Cir.2005); 15 U.S.C. § 1125(a)(1). Equivalent protection from infringement and unfair competition is afforded to both registered and unregistered marks. Everest Capital Ltd. v. Everest Funds Management, L.L.C., 393 F.3d 755, 759 (8th Cir.2005).
The first step in proving a claim under the Lanham Act is to establish that a mark is protectible. Trade or service marks are categorized as either generic, descriptive, suggestive, or arbitrary. A generic mark is never protectible, and descriptive marks generally are not protectible, while suggestive and arbitrary marks are "inherently distinctive and protectible." Schwan's IP, LLC v. Kraft Pizza Co., 460 F.3d 971 (8th Cir.2006). It can thus be seen that the starting point for the Court's analysis of the Lanham Act claims is to determine whether the mark "Arkansas Trophy Hunters Association" is protectible.
A descriptive mark uses terms that "describe[] the ingredients, characteristics, qualities, or other features of the product and may be used as a trademark only if it has acquired a secondary meaning." Id. The rationale for affording protection to suggestive or arbitrary marks, while not granting that same protection to descriptive marks, is that descriptive terms "are needed to describe all goods of a similar nature. Such a term describes the ingredients, characteristics, qualities, or other features of the product and may be used as a trademark only if it has acquired a secondary meaning:" In order to be entitled to protection, "a descriptive term must be so associated with the product that it becomes a designation of the source rather than of a characteristic of the product." Id.
Following a hearing on the issue of preliminary injunctive relief, this Court ruled that "Arkansas Trophy Hunters Association" appears "to fall into the category of a descriptive mark." The evidence adduced at the plenary trial of the matter has not altered the Court's conclusion on that crucial issue. While the word "trophy" might, it is true, have a secondary meaning, because there are "trophies" other than animals which are hunted for sport (for example, athletic trophies or trophy wives), those trophies are not "hunted" so much as "won," "vied for" or "sought after." When the words "trophy" and "hunters" are combined, the phrase is, in the Court's view, simply and clearly descriptive of people who try to kill animals of sufficient size, age, or rarity to be considered suitable for mounting. The addition of the word Arkansas does not change the analysis. The Court agrees with the USPTO that "Arkansas" is primarily geographically descriptive, and "trophy hunters association" is merely a descriptive term.
Nor was there any testimony from which the Court could conclude that the mark is so closely associated with the services rendered by either plaintiff or defendant that it has become "a designation of the source rather than of a characteristic of the product." There being no secondary *282 or acquired meaning to this descriptive mark, the Court concludes that the mark "Arkansas Trophy Hunters Association" is not entitled to trademark protection under the Lanham Act.
The Court likewise rejects any contention that ATHA's use of the name Arkansas Trophy Hunters Association is causing or could cause mistake, confusion or deception vis a vis TTHA's use of its marks Texas Trophy Hunters Association or The Journal of the Texas Trophy Hunters. The Lanham Act analysis, supra, applies to the mark Texas Trophy Hunters Association, which does not appear to be registered. The mark The Journal of the Texas Trophy Hunters, for which TTHA obtained federal registration in 2000, is simply too different from "Arkansas Trophy Hunters Association" to generate any confusion. The marks contain only two words in common, the descriptive phrase "trophy hunters," and the use of a state identifier is sufficient to avoid confusion between the two. People do not accidentally show up for the Texas State Fair on the date advertised for the Arkansas State Fair, or mistakenly attend a meeting of the Arkansas Bar Association when what they wanted was to attend a meeting of the Texas Bar Association. Nor did TTHA offer evidence of confusion that would contradict the logic of this analysis.
For all these reasons, the federal trademark infringement claims of both parties will be denied.
4. Lanham Act False Designation of Origin Claims:
The analysis of protectibility applies equally to the parties' Lanham Act claims of false designation of origin, Daimler-Chrysler AG v. Bloom, 315 F.3d 932 (8th Cir.2003), and those claims will also be denied.
5. Lanham Act False Advertising Claim:
A claim of false advertising under the Lanham Act involves a different analysis. A plaintiff must establish:
* a false statement of fact by defendant about its own or another's product;
* which has deceived, or has a tendency to deceive, a substantial segment of the advertising audience;
* and which is material, in that it is likely to influence a purchasing decision;
* which statement has entered interstate commerce; and
* which injures, or is likely to injure, the plaintiff.
American Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir.2004).
An actionable false statement may be either literally false factually, or may be literally true or ambiguous factually, but convey a false impression or be likely to deceive consumers. Id. Where a plaintiff relies on a "tendency to mislead" theory, it must prove "that the advertising actually conveyed the implied message and thereby deceived a significant portion, of the recipients." United Industries Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir.1998).
ATHA's false advertising theory appears to be that TTHA's use of "Arkansas Trophy Hunters Association" tends to mislead consumers into believing that they are dealing with an organization which has its roots in Arkansas, rather than one rooted in Texas. ATHA failed, however, to offer evidence that a significant portion of those who saw any advertising by TTHA of its Arkansas organization were actually deceived, and its Lanham Act false advertising claim fails on that account.
6. Unfair Competition under the Arkansas Deceptive Trade Practices Act:
ATHA asserts a claim of unfair competition under the Arkansas Deceptive *283 Trade Practices Act ("ADTPA"), which prohibits "[k]nowingly making a false representation as to the . . . sponsorship . . . of goods or services." A.C.A. § 4-88-107(a)(1). It is not necessary, however, for the Court to decide whether TTHA, in using the trade name "Arkansas Trophy Hunters Association," knowingly misrepresented the sponsorship of its trade show. That is because in order to prove its ADTPA claim, ATHA must establish that it has suffered "actual damage or injury as a result of an offense or violation as defined" in the ADTPA. A.C.A. § 4-88-113(f). ATHA offered no evidence of actual damage which would support a claim under the ADTPA, and that claim will be denied.
7. Common Law Unfair Competition Claims:
Under Arkansas common law, when a trademark "has acquired a secondary meaning, the original user has a property right which equity will protect against unfair appropriation by a competitor." Tri-County Funeral Service, Inc. v. Eddie Howard Funeral Home, Inc., 330 Ark. 789, 957 S.W.2d 694 (1997).
The concept of "secondary meaning" under Arkansas common law is similar to that under the Lanham Act:
There are certain names, marks, and symbols which in their primary sense are merely generic or descriptive and do not ordinarily indicate the origin of goods or services. Such names, marks, or symbols, when used in their primary sense, cannot form the subject matter of a trade or service mark. However, a name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods and services may become so associated in the public mind with such goods or services that it serves to identify them and distinguish them from the goods or services of others. When such an association exists, the name, mark, or symbol is said to have acquired "secondary meaning" in which the original user has a property right which equity will protect against unfair appropriation by a competitor.
Tri-County, supra, quoting Liberty Mutual Insurance Co. v. Liberty Insurance Co. of Texas, 185 F.Supp. 895 (E.D.Ark.1960).
For the same reasons that the Court finds no secondary meaning in the mark at issue under the Lanham Act, it concludes that neither party has shown the acquisition of secondary meaning under Arkansas common law, so as to entitled it to recover on that theory.
8. Arkansas Statutory Trademark Infringement Claim:
Because its marks "ARKANSAS TROPHY HUNTERS" and "ARKANSAS TROPHY HUNTERS ASSOCIATION" are registered in the State of Arkansas, TTHA seeks relief under the Arkansas statutory scheme dealing with trademarks, found at A.C.A. § 4-71-201 et seq. A.C.A. § 4-71-212 prohibits the use, without consent, of a registered mark or any "reproduction, counterfeit, copy, or colorable imitation" of such a mark. Relief under the statutory scheme is limited to injunctive relief unless based on actions "committed with the intent to cause confusion or mistake or to deceive."
TTHA has registered the mark "ARKANSAS TROPHY HUNTERS" to use on "[m]agazines featuring game hunting, fishing, wildlife, and related recreational activities," and the mark "ARKANSAS TROPHY HUNTERS ASSOCIATION" for the use of "[a]rranging and conducting trade shows in the field of hunting and outdoor recreational activities." The Court finds no basis to grant any form of relief on the strength of these registrations, because there is neither allegation nor evidence that ATHA has any plans to hold a trade show or publish a magazine. *284 Nor is there any evidence of intent to cause confusion, mistake, or deception.
While the Court recognizes that, under the Arkansas scheme, a "merely descriptive" mark is not properly registrable at all, it has not treated ATHA's pleadings as a challenge to the registrations in question. ATHA did not pray for cancellation of the registrations and did not carry out the proper procedures for mounting a challenge to the registrations under the statute. Thus, its pleadings do not suffice as a challenge to the registrations.
9. Trademark Dilution Claims:
Finally, TTHA claims that ATHA diluted its mark. Dilution claims are different from infringement claims. "Prohibiting trademark infringement protects trademark owners and consumers from likely confusion. Prohibiting trademark dilution, on the other hand, protects the holder of a famous trademark from misappropriation of its investment in the mark." Everest Capital Ltd., supra, 393 F.3d at 762.
To be eligible for "dilution protection," a mark must be famous. Eight criteria are listed in the statute for evaluating "fame":
* degree of inherent or acquired distinctiveness of the mark;
* duration and extent of use of the mark;
* duration and extent of advertising and publicity of the mark;
* geographical extent of the trading area in which the mark is used;
* the channels of trade for the goods/services with which the mark is used;
* degree of recognition of the mark in those trading areas and channels;
* nature and extent of similar marks used by third parties;
* whether the mark was registered as of 1881, 1905, or on the "principal register."
TTHA's claim fails when measured by these criteria, whether the contention is related to the mark "Texas Trophy Hunters Association" or the mark "Arkansas Trophy Hunters Association." These marks are not inherently distinctive but merely descriptive, and have not acquired distinction, i.e., secondary meaning. They are used only in a very narrow channel of trade, or niche market, and are not on the Principal Register.
Fame is "a rigorous standard. `Dilution is a cause of action invented and reserved for a select class of marks those marks with such powerful consumer associations that even non-competing uses can impinge their value'." Id., quoting Avery v. Dennison Corp. v. Sumpton, 189 F.3d 868 (9th Cir.1999). It cannot be seriously contended that TTHA's use of "Arkansas Trophy Hunters Association" or even "Texas Trophy Hunters Association" meets this rigorous standard-even in the niche market of hunting organizations. Nor has the Eighth Circuit recognized a niche market dilution cause of action at this point. See Frosty Treats Inc. v. Sony Computer Entertainment America, Inc., 426 F.3d 1001 (8th Cir.2005) and Everest Capital, Ltd., supra. The Court therefore concludes that TTHA's federal dilution claim should be denied.
The corresponding claim for dilution under state law must be denied for the same reasons. The provisions made under Arkansas law to prevent dilution follow the same "famous mark" analysis, and the same criteria for fame are used. A.C.A. § 4-71-213.
IT IS THEREFORE ORDERED that all claims of both parties herein are dismissed *285 with prejudice, with each party to bear its own costs and attorney's fees.
NOTES
[1] The Court has found neither law nor evidence to support a state law theory of "palming off," nor has TTHA offered argument in regard to this claim, and the Court will treat it as abandoned.
[2] Throughout this opinion, the Court has used "ATHA" to designate the plaintiff, and "Arkansas Trophy Hunters Association" to designate the name by which both plaintiff and defendant were doing business in Arkansas.
[3] The Lanham Act creates both a "Principal" and a "Supplemental" register. Registration on the Principal Register is prima facie evidence of the registrant's exclusive right to use a mark in commerce in connection with the goods or services specified in the registration. 15 U.S.C. § 1115(a). Registration on the Supplemental Register does not convey substantive rights beyond those available at common law. In re American Fertility Society, 188 F.3d 1341 (Fed.Cir.1999).
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27 S.W.3d 928 (2000)
Deborah MORGAN, Petitioner,
v.
Mack ANTHONY, Respondent.
No. 99-1018.
Supreme Court of Texas.
August 24, 2000.
Rehearing Overruled October 26, 2000.
John H. Seale, Seale Stover & Bisbey, Jasper, for Petitioner.
Darrell Matthew Minton, Harris Lively & Duesler, Beaumont, for Respondent.
PER CURIAM.
Deborah Morgan sued Mack Anthony for intentional infliction of emotional distress. Anthony moved for summary judgment on the basis that there was no evidence *929 that he acted intentionally, that his conduct was extreme or outrageous, or that Morgan suffered severe emotional distress. The trial court granted Anthony's motion, and the court of appeals affirmed. Because we hold that there is some evidence of the three elements of Morgan's cause of action that are at issue, we reverse the judgment of the court of appeals and remand this case to the trial court.
This Court adopted the Restatement's formulation of intentional infliction of emotional distress in Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993) (adopting Restatement (Second) of Torts section 46 (1965)). We have held that to recover damages for intentional infliction of emotional distress, a plaintiff must establish that "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Extreme and outrageous conduct is conduct "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Twyman, 855 S.W.2d at 621 (quoting Restatement (Second) of Torts section 46 cmt. d (1965)).
In reviewing the summary judgment record to determine if there was legally sufficient evidence to raise a fact question on the three elements of intentional infliction of emotional distress that Anthony raised in his motion, we consider the evidence in the light most favorable to Morgan, the nonmovant. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (holding that a trial court must grant a no-evidence summary judgment motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements); Tex.R. Civ. P. 166a(i) and cmt. The summary judgment evidence includes excerpts from two depositions of Morgan and her answer to an interrogatory. Generally, a party cannot rely on its own answer to an interrogatory as summary judgment evidence. See Fisher v. Yates, 953 S.W.2d 370 (Tex. App.-Texarkana 1997), pet. denied sub nom. Yates v. Fisher, 988 S.W.2d 730 (Tex.1998) (per curiam) (noting that a non-moving party cannot use its own interrogatory answers as summary judgment evidence). However, in this case, Morgan was questioned in one of her depositions about her seven-page interrogatory answer that described in detail the events that are the basis for this suit, and the interrogatory answer was attached to her deposition as an exhibit. She affirmed in her deposition that everything contained in her interrogatory answer was true. The excerpts from her deposition about the interrogatory answer and the interrogatory answer itself were part of the summary judgment record. The interrogatory answer became competent summary judgment evidence when it became a deposition exhibit, Morgan affirmed in her deposition that it was correct, and she was subject to cross-examination about the assertions in her interrogatory answer. We therefore consider the facts recounted in the interrogatory answer, as well as Morgan's deposition testimony.
It is necessary in this case to recite the facts in some detail in order to describe adequately the basis for this suit. Morgan recounted that shortly after she left work one afternoon to go home, she began experiencing car trouble. Her workplace was in Colmesneil, Texas, but she lived in Jasper. She stopped to call her husband to tell him of her problem but could not reach him. She was able to get in touch with her mother and asked her mother to contact either her husband or her father and to send one of them to find her if she was not home in thirty minutes. As she continued toward her home on U.S. Highway 190, the problems with her automobile *930 worsened. She was no longer able to drive more than five miles per hour, so she began traveling on the shoulder.
As she was making her way, Mack Anthony, whom she had never before seen, pulled in front of her in his pickup. At that point, Morgan's vehicle died. Anthony got out of his truck, approached Morgan's car on the passenger side, and opened the door. He asked if she was having trouble, to which she responded yes, but she told Anthony that her husband, who was a mechanic, or her father was on the way to help her. She thanked Anthony and tried to shut her car door, but he held it open. Anthony then made a statement to the effect that Morgan's husband might not be "taking care of [her] in the car department" and implied that her husband might not be "taking care of her" in other areas of her life. Anthony then said that maybe he could "help [her] in another area." She replied no, that she was a happily married woman and asked Anthony to please let her shut the car door. Anthony responded that he did not live very far away and suggested that Morgan follow him so that he could fix her car "and anything extra that [she] needed."
Morgan continued her efforts to pull her car door closed, but Anthony continued to hold it open. She repeatedly asked him to let her shut her door, but he refused. During most of this exchange, Anthony was leaning into the car with one hand on the dashboard, and he stared between Morgan's legs and at her breasts. When he stepped back, with only one hand on the car door, Morgan was able to shut and lock it. Morgan made numerous attempts to restart her car as Anthony stood outside the passenger window saying things such as "come on baby, open the door." Morgan's car eventually did restart and she drove off, but she again could not get her car to go faster than five miles per hour.
Anthony got back into his truck and followed Morgan. He passed her, then pulled onto the shoulder in front of her. She was unable to pass because of oncoming traffic that was traveling at about seventy miles per hour. Her vehicle again died. Anthony again got out of his car and began pulling on Morgan's door handle, knocking on the window, and telling her, "see you do need me." She asked him to please leave her alone and told him that he was scaring her. She was able to restart her vehicle, and she again pulled away.
Anthony again followed her, then passed her. He pulled into an abandoned driveway ahead of her, and as she approached, flashed his headlights and motioned with his hands for her to come into the driveway. Morgan did not stop.
Anthony then pursued her, passed her, pulled in front of her on the shoulder, and stopped. Morgan pulled onto the main highway in an effort to pass him. Anthony then would not allow her to pull back onto the shoulder for a period of time. He then pulled ahead of Morgan, and when she returned to the shoulder, he turned onto a dirt road that she was approaching, blocking her access on the shoulder. She stopped her car about five car lengths from Anthony's truck, unable to pass him, and he came to her door on the passenger side. She asked why he would not leave her alone and told him that she was afraid of him. She then pointed to an oncoming truck and told Anthony that it was her husband, although she knew it was not. Anthony ran back to his vehicle and headed in the opposite direction from the oncoming truck.
Morgan again started her car, but about five minutes later, Anthony returned. He again pulled his truck in front of her on the shoulder and stopped. She was able to pull around him, but seven more times, he pulled in front of her. She began staying on the main highway rather than the shoulder in an effort to avoid being stopped by Anthony. He would pull in front of her to force her onto the shoulder to get around him. Finally, Morgan saw a diner and pulled into its parking lot. She *931 went inside and told a waitress what had happened. Her father came to the diner and picked her up.
Morgan reported the incident to law enforcement officials in both Tyler and Jasper Counties. Mack Anthony was ultimately identified. While he admitted that he had stopped to offer assistance to Morgan, he denied any inappropriate conduct. Anthony was not charged with a crime. A Tyler County sheriff's deputy told Morgan that it would just "be her word against [Anthony's]." Morgan sued Anthony about one month after the incident, alleging intentional infliction of emotional distress and seeking damages not to exceed $75,000.
Based on the facts that Morgan set forth, we conclude that there is some evidence that Anthony acted intentionally or recklessly. His actions alone indicate that they were done knowingly and intentionally. And, Anthony persisted in his pursuit of Morgan after she had repeatedly asked that he leave her alone and told him that he was frightening her. We also have no difficulty in concluding that there is evidence of conduct that is "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" City of Midland v. O'Bryant, 18 S.W.3d 209, 217 (quoting Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex.1996) (quoting Twyman, 855 S.W.2d at 621)).
The court of appeals, however, concluded that there was no evidence that Morgan's emotional distress was severe. See 25 S.W.3d at 6. We disagree. The court of appeals focused only on evidence of Morgan's distress in the days and months after the incident. See id. at 6. It did not consider the evidence regarding Morgan's emotional state when she was being pursued by Anthony. The deposition excerpts that Anthony attached to his motion for summary judgment reveal that during Morgan's encounters with Anthony, Anthony "instilled great fear and distress" in her. She was afraid that Anthony was going to physically grab her. She testified that while he was making sexual advances and refusing to allow her to shut her car door, she was suffering great fear, distress, and emotional injury. Since that time, she has sought treatment from a psychiatrist, a psychologist, her regular physician, and one of her physician's assistants. She testified that she suffered from depression, has had problems with her family, nightmares, and is afraid when she leaves her home. The record contains more than a scintilla of evidence that Morgan suffered severe emotional distress in the context of the tort of intentional infliction of emotional distress.
Accordingly, pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure and without hearing oral argument, the Court reverses the judgment of the court of appeals and remands this case to the trial court for further proceedings.
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13 N.Y.3d 815 (2009)
THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABDUL-JABBOR MALIK, Appellant,
v.
STATE OF NEW YORK, Respondent.
Court of Appeals of New York.
Decided October 20, 2009.
Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Moreover, here, there is no order of the Appellate Division granting appellant leave to appeal to the Court of Appeals.
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961 F.2d 217
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Damon Ray HYMER, Defendant-Appellant.
No. 91-30236.
United States Court of Appeals, Ninth Circuit.
Submitted April 20, 1992.*Decided April 24, 1992.
Before FARRIS, O'SCANNLAIN and TROTT, Circuit Judges.
1
MEMORANDUM**
2
Damon Ray Hymer appeals his sentence under the Sentencing Guidelines imposed following his guilty plea to manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He contends that the Guidelines' treatment of each marijuana plant as the equivalent of one kilogram of marijuana violates due process and equal protection. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
BACKGROUND
3
Hymer pleaded guilty to knowingly and intentionally manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). The presentence report calculated his adjusted offense level at 24, with a Guidelines range of 51 to 63 months. The government sought a downward departure pursuant to U.S.S.G. § 5K1.1 due to Hymer's substantial assistance to authorities. Hymer filed a motion to correct the offense level computation on the ground that the part of U.S.S.G. § 2D1.1 equating one marijuana plant with one kilogram of marijuana violates due process and equal protection. Following a sentencing hearing, the district court rejected Hymer's constitutional challenge to section 2D1.1 but departed downward to 24 months imprisonment on the basis of Hymer's substantial assistance to authorities.
STANDARD OF REVIEW
4
"The constitutionality of the Sentencing Guidelines is a question of law which we review de novo." United States v. Fuentes, 925 F.2d 1191, 1193 (9th Cir.1991).
DISCUSSION
I. Due Process
5
Hymer contends that the Guidelines' treatment of each marijuana plant as the equivalent of one kilgram of marijuana violates due process because it has no rational basis; constitutes an impermissible irrebuttable presumption; is demonstrably flase; and violates the fundamental fairness doctrine of reciprocity by abandoning the plant-kilogram equation and sentencing on the basis of the actual weight of the plant where its weight exceeds one kilogram.
6
These arguments are foreclosed by our recent decision in United States v. Belden, No. 91-30022, slip op. 1705, 1710-13 (9th Cir. February 20, 1992), in which we upheld the plant-kilogram equation against a due process challenge. We found that the equation "does not purport accurately to translate the amount of marijuana harvestable from a given plant." Id. at 1712. Instead, its "rationality lies in its recognition of a higher level of culpability for marijuana growers compared to those who merely possess the product." Id. The abandonment of the equation where its application would result in a lesser sentence similarly reflects the "higher level of culpability for marijuana growers." Id. at 1712.
II. Equal Protection
7
Hymer also contends that the plant-kilogram equation violates equal protection by providing for disparate treatment of offenders without a rational basis. Hymer's equal protection argument essentially duplicates his due process argument. See generally Chapman v. United States, 111 S.Ct. 1919, 1923 (1991) (equal protection challenge to sentencing scheme duplicated due process argument that sentencing scheme was arbitrary). Because the equation has a rational basis in its recognition of the heightened culpability of marijuana growers regardless of the amount of marijuana harvestable from a given plant, Belden, slip op. at 1712-13, it does not violate equal protection.
8
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3
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400 B.R. 516 (2008)
In re James Allen HALL, Jennifer Dawn Hall, Debtors.
No. 08-20253.
United States Bankruptcy Court, S.D. West Virginia.
December 3, 2008.
*517 Andrew S. Nason, Pepper & Nason, Charleston, WV, for Debtors.
MEMORANDUM OPINION OVERRULING, IN PART, OBJECTION TO CONFIRMATION
RONALD G. PEARSON, Bankruptcy Judge.
Pending before the Court is the objection of Ford Motor Credit Company, LLC, formerly Ford Motor Credit Company (hereinafter "Ford") to the Debtors' Chapter 13 plan. As a part of the plan, the Debtors assert that the financing by Ford of negative equity[1] on trade-in vehicle allows them to cramdown Ford's secured claim to the value of their 2007 Ford F150 pickup, despite the fact that the vehicle was purchased within 910 days of their bankruptcy filing. Ford contends that the full amount of its claim must be treated as secured regardless of the actual value of the collateral.
I. BACKGROUND
On August 20, 2007, the Debtors entered into a contract with Moses Ford, Inc., of St. Albans, WV for the purchase of a 2007 Ford F150 pickup. The Debtors traded in a 2006 Chevrolet K2500 truck. The amount owing on the Debtors' trade-in was $34,599.00. Debtors were given a trade-in allowance of $27,239.18. In the common parlance of the automotive trade, the Debtors were "upside down" on their trade-in to the extent of this difference. Ford agreed to finance this "negative equity" totaling $7,359.82. That sum was fully disclosed on the fact of the contract described as "Net Trade Payoff."
Approximately 7 months after purchasing the vehicle, the Debtors filed this Chapter 13 proceeding. In numbered paragraph 3 of their plan, the Debtors checked that there were no Class Three claims to be paid, which included motor vehicle claims within 910 days of the filing of the Chapter 13 petition. The plan proposed to pay Creditor's claim as a Class Four claim, listing the total claim at $40,500.00, with a secured value of $26,000. In essence the Debtors sought to bifurcate this claim pursuant to 11 U.S.C. § 506 and Ford objected.
II. DISCUSSION
The Debtors Chapter 13 plan proposes to bifurcate Ford's claim into a secured and unsecured portion. The unsecured portion is to be treated as an unsecured claim in the plan, and paid pro rata with other unsecured creditors. Ford objects to this treatment on the grounds that it holds a claim defined by the hanging paragraph *518 following 11 U.S.C. § 1325(a)(9) (commonly referred to as "910 car claims," or "the hanging paragraph" because it lacks an alphanumeric designation), and, therefore, holds a claim that cannot be bifurcated. While recognizing that Ford may otherwise hold a 910 car claim, the Debtors assert that the financing of negative equity removes Ford's claim from the protection of the hanging paragraph, which only protects "purchase money security interest securing the debt that is the subject of the claim":
For purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle ... acquired for the personal use of the debtor....
11 U.S.C. § 1325(a).
The hanging paragraph is significant because, without the protection afforded by it, nothing prevents a debtor from using § 506 (which ties the value of a creditor's security interest to the value of the secured collateral) to do exactly what the Debtor proposes: bifurcate Fords's claim against the purchased vehicle into secured and unsecured portions. Before being entitled to the protection of the hanging paragraph, a creditor must satisfy four conditions: (1) the creditor must have a purchase money security interest; (2) securing a debt that was incurred within 910 days before the filing of the bankruptcy petition; (3) the collateral for the debt must be a motor vehicle; and (4) the motor vehicle must have been acquired from the personal use of the debtor. General Motors Acceptance Corp. v. Peaslee (In re Peaslee), 373 B.R. 252, 257 (W.D.N.Y. 2007). Here, there is essentially no dispute between the parties that elements two through four are present regarding Ford's claim. Therefore, the court must decide only whether (A) Ford holds a purchase money security interest, and (B) how to treat Ford's claim in the Debtor's bankruptcy.
A. Purchase Money Security Interest & Negative Equity
The Debtors argue that Ford cannot have a purchase money security interest in a vehicle when a portion of the money loaned was not used for the purchase of the 2007 F150, but was used to payoff a pre-existing loan on the Debtor's trade-in vehicle.
The term "purchase money security interest" is not defined in the Bankruptcy Code. It is defined under State law. In West Virginia, § 46-9-103(a)(l) of the Commercial Code states, "A security interest in goods is a purchase-money security interest to the extent that the goods are purchase-money collateral with respect to that security interest." In turn, "purchase-money collateral" is defined as "goods ... that secure[] a purchase-money obligation incurred with respect to that collateral." § 46-9-103(a)(1). The term "purchase-money obligation" is defined as "an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used." § 46-9-103(a)(2). Thus, to be entitled to the protection of the hanging paragraph, a creditor must advance funds to the debtor for the purpose of purchasing an automobile.
Courts have reached two different outcomes in determining whether the financing of negative equity destroys a purchase money security interest in a consumer transaction. Some conclude that the financing *519 for negative equity does not destroy the purchase money security interest because the financing of the negative equity is part of the price of the collateral, or value given to enable the debtor to acquire the collateral. In re Conyers, 379 B.R. 576, 579 (Bankr.M.D.N.C.2007) (citing GMAC v. Peaslee, 373 B.R. 252 (W.D.N.Y. 2007)); Graupner v. Nuvell Credit Corp., No. 4:07-CV-37CDL, 2007 WL 1858291, 2007 U.S. Dist. LEXIS 46144 (M.D.Ga. June 26, 2007); In re Burt, 378 B.R. 352 (Bankr.D.Utah 2007); In re Bradlee, No. 07-30527, 2007 Bankr.LEXIS 3863 (Bankr. W.D.La. Oct. 10, 2007); In re Wall, 376 B.R. 769 (Bankr.W.D.N.C. Sept. 17, 2007); In re Cohrs, No. 07-21431A13G, 2007 WL 2050980, 2007 Bankr.LEXIS 2529 (Bankr. E.D.Cal. June 25, 2007); In re Petrocci, 370 B.R. 489 (Bankr.N.D.N.Y.2007).
Others disagree on the basis that the finance of negative equity is not a component of the price of the collateral. Conyers, 379 B.R. at 580; In re Westfall, 376 B.R. 210 (Bankr.N.D.Ohio 2007); In re Acaya, 369 B.R. 564 (Bankr.N.D.Cal.2007); In re Price, 363 B.R. 734 (Bankr.E.D.N.C.2007)(affirmed in pertinent part by Wells Fargo Financial North Carolina 1, Inc. v. Price, 2007 WL 5297071 (E.D.N.C.2007)); In re Blakeslee, 377 B.R. 724 (Bankr.M.D.Fla.2007).
Importantly, Official Comment 3 to W. Va.Code § 46A-9-103 states that "the `price' of collateral or the `value given to enable' [the purchase] includes obligations for expenses incurred in connection with acquiring rights in the collateral" Such expenses include sales taxes, finance charges, interest, costs of storage in transit, and administrative charges. Id. In Peaslee, 373 B.R. at 258, the district court included the finance of negative equity in this list. The ruling in Peaslee was based, in part, on New York's Motor Vehicle Retail Installment Sales Act, which contained a definition of "cash sale price." By statute, the sale price of a vehicle "include[s] the unpaid balance of any amount financed under an outstanding motor vehicle loan agreement ... or the unpaid portion of the early termination obligation under an outstanding motor vehicle retail lease agreement." Id. at 261.
Unlike New York, West Virginia does not presently have a Motor Vehicle Retail Installment Sales Act. By analogy, the West Virginia Consumer Credit and Protection Act defines the term "cash price" as, "the price at which the goods, services or interest in land are offered for sale by the seller to cash buyers in the ordinary course of business, and may include: (a) applicable sales, use, privilege, and excise and documentary stamp taxes; (b) the cash price of accessories or related services such as delivery, installation, servicing, repairs, alterations and improvements; and (c) amounts actually paid or to be paid by the seller for registration, certificate of title or license fees." W. Va.Code § 46A-1-102(6). Similarly, with regard to the assessment of a sales tax, the term "sales price" does not include consideration from "the exchange of other vehicles" § 11-15-3c(b).
Apart from statutory definitions of what constitutes the "sales price" for a particular item, a hallmark of a purchase money security interest is that the creditor advance value "to enable the Debtor to acquire rights in or the use of the collateral...." § 46-9-103(a)(2). Logically, the financing of negative equity is not an integral component of the loan agreement to purchase a motor vehicle; it only serves as a convenience to the debtor. E.g., Conyers, 379 B.R. at 582 ("In this case, while the loan of additional money was a convenience and an accommodation to the Debtor, the court cannot find that it enabled the Debtor to acquire rights in or the use *520 of the collateral."). No value is added to a vehicle when the creditor also finances the payoff of a trade-in's negative equity; negative equity financing is not necessary to purchase a motor vehicle. E.g., Price, 363 B.R. at 741 ("The funds loaned to satisfy the negative equity are not a component of the price of the collateral or the value given to enable the debtor to acquire rights in the collateral, and are significantly and qualitatively different from the fees, freight charges, storage costs, taxes, and similar expenses that are typically part of an automobiles sale."). The bankruptcy court in the Price case based its interpretation upon language under North Carolina law defining "purchase money obligation" that is identical to the language used in the West Virginia statute.
Therefore, the court finds that negative equity financing is not value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used. Negative equity is antecedent debt. If the Creditor had refinanced the Debtors' original car loan, there would be no question that the characterization of the security interest as purchase money would have been lost. It follows that refinancing negative equity by rolling it in to a new purchase money loan does not thereby create a purchase money obligation at least to the extent of the antecedent debt that was refinanced. Ford's financing of negative equity on the Debtors' trade-in is not a purchase money security interest.
B. Bifurcation Into 910 and Non-910 Portions
Concluding that a creditor does not have a purchase money security interest in a motor vehicle when a creditor also finances negative equity, the court must determine whether that portion of the amount financed that actually went to purchase the vehicle is nonetheless entitled to the protection of the hanging paragraph.
Two clear lines of authority exist on this issue. The "dual status" rule holds that the non-purchase money security interest component of a claim does not destroy the purchase money security interest of the remainder of the claim. The "transformation" rule holds that the non-purchase money component transforms the entire claim into a non-purchase money security interest. E.g., In re Weiser, 381 B.R. 263, 269 (Bankr.W.D.Mo.2007) ("Courts have essentially adopted two lines of authority regarding treatment of combined purchase money and non-purchase money transactions, known as the `dual status rule' and the `transformation rule.'")
For non-consumer transactions, § 46-9-103(f)(1) of the West Virginia Commercial Code dictates that a purchase money security interest does not lose its status when the purchase money collateral also secures an obligation that is not a purchase money obligation. No corresponding provision exists for consumer transactions. Rather, by statute, the court is left to determine the proper rules, and the statute admonishes the court that it may not infer that the appropriate rule parallels those used for non-consumer transactions. § 46-9-103(h). In other words, the statute requests that the court make up rules that are appropriate to the facts of the case before it.
Arguably, the application of the "dual status" rule would prevent debtors from incurring substantial debt secured by a vehicle prior to filing for bankruptcy and, subsequently, cramming down the debt to the value of the collateral. Whereas application of the "transformation" rule would render the hanging paragraph completely ineffective in situations involving the financing of negative equity. Rendering the hanging paragraph ineffective only means *521 that creditors with 910 car claims are treated the same as a creditor that has a car claim that is 911 days old, which is the same treatment that the 910 creditor would have received before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.
Prior to BAPCPA, vehicle financers could be harmed by a debtor who acquired a vehicle in the months leading up to bankruptcy, then filed bankruptcy and crammed the creditor's claim down to the collateral value on the date of filing. Due to the rapid depreciation of motor vehicles the moment they leave the dealer's lot, debtors could often reap a benefit by cramming down the debt, only paying a secured claim equal to the depreciated value of the car. Home mortgages, while a traditionally appreciating asset, are protected from bifurcation and cramdown by 11 U.S.C. § 1322(b). In enacting the hanging paragraph, Congress fixed this disparity to ensure that debtors could not load up on vehicle-secured debt pre-petition only to cram it down to the collateral value in bankruptcy. The Court finds that in adopting the dual status rule, the objectives of Congress in passing the hanging paragraph are best served. Accordingly, that is the rule to be applied in this case and in future cases in this district. With respect to payments made on pre-petition debts to which this rule is applied, the Court shall employ a presumption that payments on the two obligations were allocated proportionally.
III. CONCLUSION
For the reasons set forth above, the Court concludes that with respect to the Debtors' treatment of Ford's claim in their Ch. 13 plan, Ford's objection is OVERRULED in part, and SUSTAINED in part. The debtor is directed to modify the plan such that the negative equity in the trade-in vehicle is characterized as unsecured debt and the actual purchase money amount is treated as a 910 claim, with pre-petition payments made on the loan credited on a proportional basis to each part.
IT IS SO ORDERED.
NOTES
[1] When a vehicle's trade-in value is less than the amount of the debt secured by it, the excess debt is typically referred to as "negative equity" and is frequently "rolled into," or made part of, the financing package involving the purchase of a new vehicle.
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17 F.Supp.2d 818 (1998)
ARCLAR COMPANY, an Illinois Corporation, Plaintiff,
v.
James Kenneth GATES, Defendants.
No. Civ. 97-4335-JLF.
United States District Court, S.D. Illinois.
August 21, 1998.
*819 Robert C. Wilson, Wilson & Cape, Harrisburg, IL, John E. Rhine, Rhine, Ernest, Mount Carmel, IL, for Plaintiff.
James W. Morris, Barrett, Twomey, Carbondale, IL, for Defendants.
MEMORANDUM AND ORDER
FOREMAN, District Judge.
Before the Court is defendant's Motion to Dismiss for Failure to State a Claim (Doc.6). Plaintiff has filed a response (Doc.12). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
Plaintiff, Arclar Company, has sued James Gates for specific performance (count I) and for an injunction (count II) regarding certain land in Saline County. Specifically, Arclar seeks specific performance of an option to purchase a certain surface area of Gates' land that Arclar claims is necessary for its coal mining operation. Arclar also seeks an injunction because Gates is allegedly preventing Arclar from using an easement that Arclar claims to have acquired by deed. The original action was brought in Saline County. Gates removed it to this Court based on diversity and an amount in controversy in excess of $75,000.
I. Background.
Once upon a time, several members of the Choisser family, (specifically, William Choisser, Kate Choisser, De Launt Choisser, and Willie Choisser), held title to 214 17/20 acres in Saline County. In 1905, in a document called "Warranty Deed to Coal," the Choissers conveyed all of the coal underneath the surface of the 214 17/20 acres to O'Gara Coal Company (Doc. 2, Exh. A). The Warranty Deed to Coal also granted O'Gara Coal Company:
... the right to mine, dig, ventilate, drain and remove the coal therefrom, and together with the right to use the passageways and entries under the said premises for the purpose of hauling, mining and removing the coal above conveyed, and all other coal not belonging to or hereafter to be acquired by the said O'GARA COAL COMPANY, its successors and assigns, and for a "Right-of-Way" over the same, or such portion thereof as may be necessary for conveying said coal to market; ...
(Doc. 2, Exh. A).
The parties refer to this bundle of rights as a "Conveyor Easement." Finally, the *820 Choissers also granted O'Gara Coal Company, (and its heirs, successors, and assigns), the right at any time to purchase for $100 per acre the portion of the land's surface necessary to mine and remove the said coal. Specifically, the Choissers agreed that:
The said grantors for themselves, their heirs, executors, administrators and assigns, as a covenant running with the land and the property conveyed, further agree to sell to the O'GARA COAL COMPANY, its successors or assigns, at any time hereafter, such portion of the surface of the premises hereinabove described as may be necessary for the erection of tipple, buildings, powerhouses, railroad tracks, switches and other improvements necessary for the mining and removing said coal at the price of One hundred ($100.00) Dollars per acre, and to convey the title of said surface to said O'GARA COAL COMPANY, its successors and assigns, by good and sufficient Warranty Deed...
(Doc. 2, Exh. A).
By mesne conveyances, Arclar acquired the interests that O'Gara Coal Company had acquired by the Warranty Deed. In other words, Arclar has acquired: 1) the coal; 2) the Conveyor Easement; and 3) the right to purchase the surface necessary to mine the coal.
Arclar claims that it is necessary to construct a conveyor over and across the Conveyor Easement to convey the coal to market. Although Arclar has the Conveyor Easement, it also claims that it needs 3.442 acres of the surface to construct a high voltage power line and water line to service the conveyor. Gates owns 33 acres, including the 3.442 acres allegedly needed by Arclar. Gates acquired these 3.442 acres with notice of O'Gara's right to buy the surface. Specifically, the deed stated that Gates' 3.442 acres was:
Subject to the rights of O'Gara Coal Company its successors and assigns, relating to purchase of the surface and ownership of a right to explore for coal attached as Exhibit A and subject to all rights which are appurtenant to ownership of coal, expressed and implied.
(Doc. 2, p. 3).
As noted, Arclar seeks specific performance of the option to buy and an injunction preventing Gates from interfering with Arclar's use of the Conveyor Easement. Gates has filed a motion to dismiss based on various grounds discussed below.
II. Standard of Review.
A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Triad Assoc., Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir.1989), cert. denied, 498 U.S. 845, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). A plaintiff is required only to provide a short and plain statement of the claim "that will give the defendant fair notice of the claim and the grounds upon which it rests." Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted)). The Court must accept pleaded conclusions as true. Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir.1992). The sole issue when reviewing a motion to dismiss is whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
III. Motion to Dismiss.
Mr. Gates' Motion to Dismiss is based on six (6) grounds which are addressed below.
1) Arclar's Claims are Not Barred by Illinois' 75-year Statute of Limitation.
Gates argues that Arclar's claims are barred by Illinois' 75-year statute of limitation, 735 ILCS 5/13-114. This statute provides that:
§ 13-114 Seventy-five year limitation. No deed, will, estate, .... relating to or affecting the title to real estate in the State of Illinois, which happened, was administered, or was executed, dated, *821 delivered, recorded or entered into more than 75 years prior to July 1, 1872, or such subsequent date as the same is offered, presented, urged, claimed, asserted, or appears against any person hereafter becoming interested in the title to any real estate, or to any agent or attorney thereof, shall adversely to the party or parties hereafter coming into possession of such real estate under claim or color of title or persons claiming under him, her or them, constitute notice, either actual or constructive of any right, title, interest or claim in and to such real estate, or any part thereof, or be, or be considered to be evidence or admissible in evidence or be held or urged to make any title unmarketable in part or in whole, or be required or allowed to be alleged or proved as a basis for any action, or any statutory proceeding affecting directly or indirectly the title to such real estate.
735 ILCS 5/13-114.
Gates argues that this statute bars any use or enforcement of a deed older than 75 years. Thus, according to Gates, Arclar's claimed easement and right to buy a portion of the surface to use that easement are barred because they originate from a deed dated 1905.
Gates' argument must fail for several reasons. First, the statute is inapplicable. The purpose of the statute is to prevent clouds on title from lingering for more than 75 years. It applies to competing chains of title, adverse interests, and the like where the title to the land is at issue or could be affected. Specifically, the statute decrees that "No deed ... offered ... against any person ... becoming interested in the title ... shall adversely to the party hereafter coming into possession of such real estate under claim or color of title ... constitute notice, either actual or constructive, of any right, title, interest ... in ... or be considered to be evidence or admissible in evidence ..." 735 ILCS 5/13-114. By its own terms, the statute applies when one of the parties asserting an interest in the land does so by "claim or color of title." Id.
Claim or "color of title" means:
The appearance, [or] semblance ... of title. Also termed "apparent title." Any fact, extraneous to the act or mere will of the claimant, which has the appearance, on its face of supporting his claim of a present title to land, but which, for some defect, in reality falls short of establishing it.
Black's Law Dictionary 241 (5th ed.1979) (citations omitted); see also Anoweurth v. Burlingin, 1 F.Cas. 1036, 1037 (C.C.D.Ill. 1848) ("The court defined the `claim and color of title made in good faith' under this law, to be such a title as in law would pass the estate prima facie, if a better title be not shown").
This is not a case involving "claim or color of title." Neither Arclar or Mr. Gates is seeking to assert, by claim or color of title, the same interest in the same property. Mr. Gates simply took title to his acreage subject to the Conveyor Easement and the option to purchase the surface necessary to mine the coal. By the same token, Arclar holds title to the coal, the Conveyor Easement and the option to purchase, and is simply seeking to exercise that option. Neither party is asserting by claim or color of title the same interest in the same property. Accordingly, by its own terms, the 75-year statute of limitation is inapplicable.
Secondly, even if the statute did apply to the facts at bar, the statute also provides an exception. This exception states that:
The provisions of this Section shall not apply to or operate against ... any person who during the entire period herein permitted for reassertion of title, or prior thereto, has not had the right to sue for and protect his or her claim, interest or title.
735 ILCS 5/13-114.
O'Gara Coal Company acquired the coal, the easement, and the option to purchase in 1905. Arclar acquired these interests by mesne conveyances. Although the Complaint does not specify when Arclar acquired these interests, Arclar's Complaint does allege that it is necessary to use the Conveyor Easement and surface to convey the coal to market. Arguably, Arclar has not needed the easement or surface until recently and *822 therefore, has not had the right to sue for the entire limitation period.
When reviewing a motion to dismiss, the sole issue is whether relief is possible under any set of facts that could be established consistent with the allegations in the complaint. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Accordingly, even if the 75-year limitation did apply to this case, it appears from the Complaint that Arclar has not had the right to sue for the requisite period time period. For these reasons, Arclar's claims are not barred by Illinois' 75-year statute of limitation.
2) Arclar's Claims are Not Barred by the Rule Against Perpetuities.
Gates argues that Arclar's claims are barred by the Rule Against Perpetuities. Illinois courts have noted that an option to purchase real estate is subject to the Rule Against Perpetuities. See e.g., Warren v. Albrecht, 213 Ill.App.3d 55, 157 Ill.Dec. 160, 571 N.E.2d 1179, 1180 (5th Dist.1991). The Illinois Supreme Court, however, has noted that the right to purchase surface rights is not subject to the rule against perpetuities when the owner of the right requires the surface in order to remove minerals already owned. Threlkeld v. Inglett, 289 Ill. 90, 124 N.E. 368 (1919).
In Threlkeld, an option within a deed provided that the surface should be conveyed at the rate of $150 per acre if necessary for the purpose of the mining rights conveyed. The Illinois Supreme Court specifically rejected the Rule Against Perpetuities contention by stating that:
The conveyance was to be of the coal, oil, and gas under the land, with the right to mine and remove the same, and, when anything is granted, all the means to attain it and all the fruits and effects of it are granted also, and pass, together with the grant of the thing itself, without any words to that effect. *** Where a grant is made for a valuable consideration it is presumed that the grantor intended to convey and the grantee expected to receive the full benefit of it, and therefore the grantor not only conveyed the thing specifically described, but all other things, so far as it was within his power to pass them, which were necessary to the enjoyment of the thing granted. The deed, when made, would not only pass the coal, oil, and gas, with the right to mine and remove the same, but also the right to enter upon and use so much of the surface of the land as might be necessary to the enjoyment of the property and rights conveyed, and the agreement was merely that the land taken for such use should be paid for, when located, at the rate of $150 an acre. It was not within the rule against perpetuities.
Threlkeld, 124 N.E. at 371.
Threlkeld was decided in 1919. It has been cited with approval by the Illinois Supreme Court in Jilek v. Chicago, Wilmington & Franklin Coal Co., 382 Ill. 241, 47 N.E.2d 96, 98 (1943); by the Illinois Appellate Court in In re Payment of Taxes, 181 Ill.App.3d 646, 130 Ill.Dec. 291, 537 N.E.2d 358 (5th Dist.1989); by the United States Court of Appeals for the Seventh Circuit in Chicago, Wilmington & Franklin Coal Co. v. Minier, 127 F.2d 1006, 1009 (7th Cir.1942); and Chicago, Wilmington & Franklin Coal Co. v. Herr, 127 F.2d 1010, 1012 (7th Cir.1942); and even by courts in other states; see e.g., Quarto Mining Co. v. Litman, 42 Ohio St.2d 73, 326 N.E.2d 676, 681 (1975). Accordingly, Arclar's claims are not barred by the Rule Against Perpetuities.
3) Arclar's Claims are Not Barred by Illinois' 40-year Statute of Limitation, 735 ILCS 5/13-118.
Gates argues that Arclar's claims are barred by Illinois' 40-year statute of limitation, 735 ILCS 5/13-118. This statute provides that:
§ 13-118 Forty year limitation on claims to real estate. No action based upon any claim arising or existing more than 40 years before the commencement of such action shall be maintained in any court to recover any real estate in this State ... against the holder of the record title to such real estate when such *823 holder of the record title and his or her grantor immediate or remote are shown by the record to have held chain of title to such real estate for at least 40 years before the action is commenced,...
735 ILCS 5/13-118.
According to Gates, this statute bars any claim to real estate older than 40 years against an owner, who along with his predecessor in title, has held title for at least 40 years. Another section of the statute, however, Chapter 735 ILCS 5/13-120, expressly excludes mineral rights and interests appurtenant to mineral rights. Specifically, it provides that:
§ 13-120. Limitation on sections. Sections 13-118 through 13-121 of this Act shall not be applied:
* * * * * *
4. To bar or extinguish any separate mineral estate or any rights, immunities and interests appurtenant or relating thereto; ..
735 ILCS 5/13-120(4).
Accordingly, Arclar's claims are not barred by Illinois' 40-year statute of limitation.
4) Arclar's Claims are Not Barred by the Failure to Plead Privity of Contract with O'Gara Coal Company.
Gates also argues that Arclar's claims are barred by Arclar's failure to plead privity of contract with O'Gara Coal Company. Thus, according to Gates, Arclar has failed to establish that it has an interest in the subject property.
This argument is contrary to the plain allegations of the Complaint. The Complaint clearly states that Arclar acquired the interests obtained by O'Gara Coal Company. (Doc. 2, p. 3, ¶ 6); see also (Doc. 2, p. 7, ¶ 5). Accordingly, Arclar's claims are not barred by the failure to plead privity of contract with O'Gara Coal Company.
5) Arclar's Claims are Not Barred By Laches.
Gates argues that Arclar's claims are barred by laches. Laches has been defined as "such neglect or omission to assert a right as, taken in conjunction with lapse of time of more or less duration, and other circumstances causing prejudice to the adverse party." Holt v. Duncan, 33 Ill.App.2d 477, 180 N.E.2d 36, 38 (4th Dist.1962) (citing Holland v. Richards, 4 Ill.2d 570, 123 N.E.2d 731, 735 (1955)). Such neglect or omission will operate as a bar in a court of equity. Holt, 180 N.E.2d at 38.
The defense of laches can be raised by a motion to dismiss if: (1) an unreasonable delay appears on the face of the pleading; (2) no sufficient excuse for delay appears or is pleaded; and (3) the motion specifically points out the defect. Holt, 180 N.E.2d at 38. No unreasonable delay appears on the face of the pleadings and Gates has not set forth any facts or legal authority to suggest that laches applies. Accordingly, Gates has not shown that Arclar's claims are barred by laches.
6) Arclar's Claims are Not Barred by the Rule Against Restraints on Alienation.
Gates argues that Arclar's claimed option to purchase violates the rule against restraints on alienation. It is true that a bare option to purchase or sell real estate exercisable outside the period of the rule against perpetuities is generally held to be void as an unreasonable restraint upon alienation. Quarto Mining Co. v. Litman, 42 Ohio St.2d 73, 326 N.E.2d 676, 679 (1975) (citations omitted); see also Drayson v. Wolff, 277 Ill.App.3d 975, 214 Ill.Dec. 632, 661 N.E.2d 486, 492 (1 Dist.1996). Certain options, however, do not fall within this rule. For example, courts have held that an option to purchase land is valid as part of a longterm lease of that land. Quarto Mining Co., 326 N.E.2d at 679 (citations omitted). Similarly, options to purchase part of an overlying surface estate have been held not to violate the rule against restraint on alienation provided that they were granted for the purpose of mining the mineral estate. Quarto Mining Co., 326 N.E.2d at 681-84 (citing Buck v. Walker, 115 Minn. 239, 132 N.W. 205 (1911); and Threlkeld v. Inglett, 289 Ill. 90, 124 N.E. 368 (1919)). Here, the option to purchase is clearly limited to the portion of *824 the surface necessary for mining the coal, (specifically, that "portion of the surface ... necessary for the erection of tipple, buildings, powerhouses, railroad tracks, switches and other improvements necessary for the mining and removing said coal"). Accordingly, Arclar's option to purchase is not void as a restraint on alienation.
IV. Conclusion.
For the foregoing reasons, defendant's Motion to Dismiss (Doc. 6) is DENIED.
IT IS SO ORDERED.
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939 F.2d 696
21 Envtl. L. Rep. 21,376
LEROY LAND DEVELOPMENT, a Nevada Corporation, Plaintiff-Appellee.v.The TAHOE REGIONAL PLANNING AGENCY, a separate legal entitycreated pursuant to an interstate Compact betweenthe States of California and Nevada, etal., Defendant-Appellant.
No. 90-15364.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 16, 1991.Decided July 9, 1991.
Gary A. Owen, Crowell, Susich, Owen & Tackes, Carson City, Nev., for defendant-appellant.
Thomas J. Hall, Reno, Nev., for plaintiff-appellee.
Timothy V. Kassouni, Pacific Legal Foundation, Sacramento, Cal., for amici curiae-appellees.
John K. Van de Kamp, Atty. Gen., Richard M. Frank, Acting Asst. Atty. Gen., Daniel L. Siegel and Michael L. Crow, Deputy Attys. Gen., Sacramento, Cal., for amici curiae-appellant State of Cal., et al.
Appeal from the United States District Court for the District of Nevada.
Before SCHROEDER and FARRIS, Circuit Judges, and DUMBAULD,* District Judge.
SCHROEDER, Circuit Judge:
1
The principal issue we must resolve in this appeal is whether a land developer, who years ago settled a dispute with the appropriate governmental authority over issuance of a building permit, may now challenge the central condition of the settlement on the ground that unilateral imposition of such a condition by the authority would violate the principles enunciated in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). The Supreme Court there articulated a two-part test to determine if a land-use regulation constitutes an unconstitutional taking without just compensation. The district court in this case ruled that the challenged provision of the settlement resulted in such an unconstitutional taking. Leroy Land Dev. Corp. v. Tahoe Regional Planning Agency, 733 F.Supp. 1399, 1401 (D.Nev.1990). We hold that the obligation incurred under the settlement agreement could not constitute a governmental "taking" and therefore we reverse.
2
The plaintiff-appellee is Leroy Land Development Corporation ("Leroy"), a company currently engaged in the development of a condominium project off the shores of Lake Tahoe, Nevada. The appellant-defendant is the Tahoe Regional Planning Agency ("TRPA"), a regulatory agency with jurisdiction over the Lake Tahoe Basin. TRPA was created in 1969 by interstate compact between California and Nevada, and was approved by Congress in response to growing concern about the adverse environmental effects of increased population and development in the Lake Tahoe Basin. See California v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1310-12 (9th Cir.1985) (explaining history and authority of TRPA). TRPA was charged with adopting a regional plan and promulgating regulations that would allow limited development with an eye toward preserving the lake.
3
The 1969 compact between California and Nevada was extensively amended and received congressional approval in 1980. The 1980 amendments expanded TRPA's authority by subjecting a wider range of projects to TRPA review. The amendments also provided that TRPA could approve a project only if a detailed environmental impact statement indicating compliance with TRPA ordinances and regulations1 was obtained and after specific written findings were made by TRPA. TRPA could issue building permits only to those developers who meet these requirements.
4
This litigation had its genesis after the 1980 amendments, when TRPA notified Leroy that the remaining phase of its condominium development project (called "Bitterbrush") was subject to the newly-enacted project review requirements. Leroy sought injunctive relief against TRPA, contending that it had a vested right to complete construction of Bitterbrush pursuant to prior agency approval. See Leroy Land Dev. Corp. v. Tahoe Regional Planning Agency, 543 F.Supp. 277 (D.Nev.1982). While appeal to this court was pending, the parties agreed to settle that dispute with the "Settlement Agreement and Release" at issue here.
5
The settlement agreement was executed December 17, 1982. It provided that Leroy could construct 185 of the proposed 203 condominium units, in exchange for performing specified on-site and off-site mitigation measures. The off-site mitigation measures called for: (1) the installation of energy dissipater devices; (2) the installation of stabilization devices for the cut slope located on land adjacent to Bitterbrush; (3) the provision of secondary access to Bitterbrush; (4) the acquisition of adjacent or non-adjacent lands for open space; and (5) the mitigation of any additional items of impact identified by the environmental impact statement. These measures were intended to minimize the adverse effects of the development by preventing erosion elsewhere in the Lake Tahoe Basin. Leroy agreed to begin the off-site mitigation measures upon completion of the 50th unit. The settlement agreement provided that the district court would retain jurisdiction for purposes of enforcement and interpretation of the agreement.
6
In 1987, five years later, the Supreme Court decided Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). In Nollan, the Supreme Court examined the extent to which an agency could regulate private property without triggering an unconstitutional taking under the fifth amendment. The Supreme Court stated that a land-use regulation would not constitute a taking so long as it substantially advanced a legitimate state interest and did not deny the property owner economically viable use of the property. 483 U.S. at 834, 107 S.Ct. at 3147 (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)). The Court applied this analysis to the California Coastal Commission's conditioning of a building permit on the property owners' agreement to allow the public an easement to pass across the property owners' beach. The Court concluded that the easement condition was not a valid exercise of state power because it was unrelated to the legitimate public purposes underlying the building permit requirement. Id. 483 U.S. at 835-39, 107 S.Ct. at 3147-50.
7
After Nollan was decided, Leroy filed this proceeding in the form of a motion to abate the mitigation conditions. In effect, Leroy sought to retain its permit to construct Bitterbrush and obtain a ruling by the court that it was not bound by the mitigation provisions. Leroy claimed that it need not comply with the off-site mitigation measures because they constituted an unconstitutional taking under Nollan.
8
The district court agreed that the requisite nexus between the off-site mitigation measures and advancement of a governmental purpose was lacking. 733 F.Supp. at 1401-02. The district court acknowledged that the mitigation measures would help preserve the Lake Tahoe Basin area, but stated that Leroy could not be "singled out to bear the burden of TRPA's attempts to achieve this purpose." Id. at 1401. Accordingly, the court declared the mitigation provisions unconstitutional, severed those provisions from the body of the settlement agreement, and declared the remaining portions of the agreement enforceable. Id. at 1401-02. This appeal by TRPA followed.
9
The threshold issue is whether, assuming arguendo that the mitigation provisions would constitute a taking under Nollan if imposed unilaterally by TRPA, they can be viewed as a "taking" when consented to as a part of a settlement agreement. We hold that they cannot. The mitigation provisions at issue here were a negotiated condition of Leroy's settlement agreement with TRPA in which benefits and obligations were incurred by both parties. Such a contractual promise which operates to restrict a property owner's use of land cannot result in a "taking" because the promise is entered into voluntarily, in good faith and is supported by consideration. Indeed we have found only one case in which an agreement negotiated before Nollan was challenged as a "taking" after Nollan, and it reached the same conclusion we reach. See Xenia Rural Water Ass'n v. Dallas County, 445 N.W.2d 785, 788-89 (Iowa 1989) (negotiated setback requirement not a taking where part of agreement between parties). To allow Leroy to challenge the settlement agreement five years after its execution, based on a subsequent change in the law, would inject needless uncertainty and an utter lack of finality to settlement agreements of this kind. We therefore hold that a takings analysis as articulated in Nollan is inapplicable where, as here, parties choose to terminate or avoid litigation by executing a settlement agreement supported by consideration.
10
We cannot accept Leroy's contention that by agreeing to the continued jurisdiction of the district court over the settlement agreement, the parties also agreed that this kind of ex post facto challenge could be mounted. The agreement stated that the district court retained jurisdiction for the purpose of enforcing and interpreting the agreement. Such enforcement provisions are common in settlement agreements. See F. James & G. Hazard, Civil Procedure p 2.23 (1985). They do not, however, permit a party to renounce the settlement agreement based on subsequent changes in the law.
11
Moreover, even if the provisions of this particular agreement could be interpreted to authorize this belated challenge, we would not agree with Leroy's position that they would constitute an impermissible taking under Nollan. The district court held that the off-site mitigation provisions were not reasonably related to the agency's purpose of mitigating any adverse environmental effects caused by the construction of Bitterbrush. This was because the provisions required off-site measures to stabilize the land of third parties. 733 F.Supp. at 1401.
12
Under Nollan, the government may impose land-use regulations so long as the regulations substantially advance legitimate government interests and do not deny the owner economically viable use of the land. 483 U.S. at 834, 107 S.Ct. at 3147. In Nollan, the Court examined the nexus between the asserted government interest and the agency's regulation, and concluded that the regulation failed to further the stated government interest. Id. at 836-37, 107 S.Ct. at 3148-49. Here, however, the relationship between the mitigation provisions and TRPA's regulations is quite clear.
13
The parties agree that the purpose of the interstate compact creating TRPA is to minimize the adverse effects of urbanization on the Lake Tahoe Basin's ecological system. Of particular importance is preserving the Lake's water quality, which is deteriorating due to erosion and pollution caused by development. See California v. Tahoe Regional Planning Agency, 766 F.2d at 1316. Leroy's property is a high erosion hazard and its impervious surface land coverage exceeds TRPA's limits; the combination creates a potentially serious erosion and drainage problem. The off-site mitigation provisions at issue here include the installment of stabilization devices, the provision of secondary access to the development, and the acquisition of additional land to reduce surface coverage. Such measures would ameliorate erosion, destabilization and other adverse environmental effects caused by Leroy's development and thus directly further the governmental interest underlying the application of the relevant TRPA regulations to Leroy's development.
14
The district court's decision is REVERSED.
*
Honorable Edward Dumbauld, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation
1
In large part, TRPA's regulations require a developer to take measures to mitigate the adverse environmental impact of the development. Frequently, these measures include off-site, as well as on-site obligations. See, e.g., Tahoe Regional Planning Agency, Code of Ordinances chs. 20, 35, 37.2.I and 93
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362 F.3d 1187
UNITED STATES of America, Plaintiff-Appellee,v.Fred S. PANG, Defendant-Appellant.
No. 03-10032.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 5, 2004.
Filed March 30, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Martin A. Schainbaum, San Francisco, CA, for the defendant-appellant.
Thomas Moore, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding, D.C. No. CR-01-00337-PJH.
Before: TASHIMA, THOMAS, and SILVERMAN, Circuit Judges.
SILVERMAN, Circuit Judge:.
1
Defendant Fred S. Pang was charged in an information, and found guilty by a jury, of five counts of unlawful structuring of currency transactions, four counts of income tax evasion, and four counts of filing false tax returns. He was sentenced to twenty-four months imprisonment, and raises several arguments on appeal.
2
I. THE VOLUNTARINESS OF PANG'S CONSENT TO ENTER HIS PREMISES AND OF THE STATEMENTS HE MADE TO THE IRS AGENTS
A. FACTS
3
Pang owned and operated Sin Ma Imports, a wholesale company that sells cooking oils to restaurants and retailers. At around 9:00 A.M. on August 19, 1998, IRS Special Agent Kevin Caramucci and six other agents went to the offices of Sin Ma Imports, presented themselves at a locked iron security gate at the entrance, rang the bell, showed badges, and identified themselves. All of the agents wore business attire and carried concealed weapons. Pang unlocked the gate and allowed the agents to enter. Pang's wife Nancy escorted two agents to her office where they interviewed her. Two other agents interviewed Sin Ma employees.
4
Three agents stayed with Pang and interviewed him in an outer office. According to the agents, prior to commencing the interview, Caramucci read Pang the so-called "IRS Non-Custodial Statement of Rights Card."1 Pang responded that he understood his rights and voluntarily agreed to answer questions. Pang was asked about his businesses practices and records. He responded to questions with explanations and examples and left his chair to get records to substantiate his responses. The agents remained seated until the interview was completed, about an hour later. At the conclusion of the interview, the agents gave Pang a list of documents they needed, and then left.
5
At the hearing on Pang's motion to suppress the statements he made to the agents, Pang testified that he was never read his rights and that he was coerced into talking to the agents or induced into doing so by the agents' deceit and misrepresentations. He also claimed that he was particularly vulnerable to intimidation, having been raised in Singapore where "brutal consequences befall those who do not accede to government actions," even though he and his wife have lived in the United States for nearly 40 years and are U.S. citizens.
6
The district court denied the motion to suppress. The court specifically found Pang not to be credible. The court also found that Caramucci read Pang the IRS warnings and that Pang's statements and his consent to the IRS agents to enter his premises were voluntary and not the product of coercion, fraud, or misrepresentation. The court also found "suspect" Pang's claim that he feared the agents. In any event, the court found that the agents did nothing improper.
B. STANDARD OF REVIEW AND ANALYSIS
7
"We review de novo the district court's denial of a suppression motion. The district court's underlying factual finding that a person voluntarily consented to a search is reviewed for clear error." United States v. Patayan Soriano, No. 01-50461, 361 F.3d 494, 501, 2004 WL 439854, at *5 (9th Cir. Mar.11, 2004) (citations omitted); see also United States v. Rosi, 27 F.3d 409, 411 (9th Cir.1994) (addressing warrantless entry). The government bears the burden of proving that consent was freely and voluntarily given. Patayan Soriano, 361 F.3d 494, 2004 WL 439854, at *6. On appeal, we view evidence regarding the question of consent in the light most favorable to the fact-finder's decision. Id.
8
Having examined the record, we hold that the district court did not clearly err in finding Pang not credible. Likewise, the court did not clearly err in finding Pang voluntarily consented to the entry of his premises and voluntarily made the statements to the agents. See United States v. Huynh, 60 F.3d 1386, 1388 (9th Cir.1995).
9
II. THE ADMISSIBILITY OF THE SIN MA INVOICES AND THE WO LEE CANCELLED CHECKS
10
The gist of the government's tax case was that Pang failed to fully report income derived from sales to six of Sin Ma Import's customers. Representatives of five of the customers testified at trial concerning how they conducted business with Sin Ma. However, the government was unable to procure the testimony of a representative of the sixth customer, Wo Lee Co. Consequently, the government sought to introduce into evidence documents obtained from Wo Lee without calling anyone from Wo Lee to authenticate them.
11
These documents consisted of original invoices issued by Sin Ma and corresponding original cancelled checks written on Wo Lee's bank account. Agent Caramucci testified that Wo Lee's owner, Ming Tzeu Chen, gave these documents to IRS Agent Charlie Busch, who in turn gave them to Caramucci. Pang objected to these invoices and checks on hearsay and foundation grounds. The district court found, and Pang does not dispute, that the invoices are identical to numerous other invoices that were already admitted into evidence. Many of the invoices matched up to carbonless copies of the same invoices contained in Pang's own records seized pursuant to a search warrant. Other invoices not matched with carbonless copies bore invoice numbers appearing in sequence with other invoices contained in Sin Ma's invoice book. The district court admitted these documents into evidence, but instructed the jury that it was the final arbiter of whether the documents were authentic.
A. STANDARD OF REVIEW
12
We review for abuse of discretion a district court's finding that evidence is supported by a proper foundation. United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000). We may affirm an evidentiary ruling on any ground supported by the record, regardless of whether the district court relied on the same grounds or reasoning we adopt. Atel Financial Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (per curiam). Even if we find error, we will only reverse if an erroneous evidentiary ruling "more likely than not affected the verdict." United States v. Angwin, 271 F.3d 786, 798 (9th Cir.2001).
B. ANALYSIS
1. The Cancelled Checks
13
The Wo Lee checks did not require extrinsic evidence of authenticity. As a negotiable instrument, a check is a species of commercial paper, and therefore self-authenticating. See Fed.R.Evid. 902(9);2 United States v. Hawkins, 905 F.2d 1489, 1494 (11th Cir.1990) (checks); United States v. Little, 567 F.2d 346, 349 n. 1 (8th Cir.1977) (same); see also United States v. Carriger, 592 F.2d 312, 316 (6th Cir.1979) (promissory notes).
14
Pang also argues that the Wo Lee checks were hearsay. Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed R. Evid. 801(c). However, out-of-court statements that are offered as evidence of legally operative verbal conduct are not hearsay. They are considered "verbal acts." Stuart v. UNUM Life Ins. Co. of America, 217 F.3d 1145, 1154 (9th Cir.2000) (insurance policy); United States v. Arteaga, 117 F.3d 388, 395-98 (9th Cir.1997) (money wire transfer forms). Checks fall squarely in this category of legally-operative verbal acts that are not barred by the hearsay rule. See, e.g., Spurlock v. Comm'r of Internal Revenue, 85 T.C.M. (CCH) 1236, 1240 (T.C.2003) ("A check is a negotiable instrument, a legally operative document, and falls within the category of `verbal acts' which are excludable from the hearsay rule."); United States v. Dababneh, 28 M.J. 929, 935 (N.M.C.M.R.1989) ("[C]hecks themselves, together with the tellers' markings and routing stamps, ... are commercial events which create legal rights and obligations, and therefore no exception to hearsay need be found [to admit checks into evidence]".). Because the Wo Lee checks were self-authenticating and are not hearsay, the district court properly admitted them.
2. The Invoices
15
Unlike checks, invoices are not self-authenticating under Rule 902(9). An invoice is an "itemized list of goods or services furnished by a seller to a buyer, usu[ally] specifying the price and terms of sale." Black's Law Dictionary 833 (7th ed.1999). It is not commercial paper, nor is it a document "relating thereto to the extent provided by general commercial law." Fed.R.Evid. 902(9). To the contrary, "general commercial law" — whatever that is (presumably the Uniform Commercial Code) — makes no provision for invoices. Therefore, the government, as the proponent of the invoices, was obliged to come forward with evidence sufficient to support a finding that the invoices were what they purported to be. This it did. The government showed, and Pang does not dispute, that the invoices were identical to other invoices that were received into evidence, that they were matched to carbonless copies of the same invoices in evidence, and that the numbers were in sequence with the numbers of other invoices that were in evidence. Furthermore, the invoices correlated dollar-for-dollar with the cancelled checks.
16
The authentication requirement is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed.R.Evid. 901(a). The proponent need not establish a proper foundation through personal knowledge; a proper foundation "can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902." Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir.2002). Rule 901 allows the district court to admit evidence "if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." Tank, 200 F.3d at 630. We agree with the district court that the government offered sufficient circumstantial proof that the invoices were what they purported to be. Therefore, the foundation was adequate.
17
The next question is whether the invoices were hearsay. They were not. When offered against Pang, Pang's invoices were admissions, and therefore non-hearsay as defined by Rule 801(d)(2).
18
III. CONSTRUCTIVE AMENDMENT OF THE INFORMATION
19
With respect to the structuring counts, Pang argues that the information was constructively amended. We review de novo allegations that there was constructive amendment of an indictment, United States v. Adamson, 291 F.3d 606, 612 (9th Cir.2002), and we apply that same standard to an information. The information charged that Pang acted "knowingly and for the purpose of evading the reporting requirements." However, when it came time to settle instructions, the court ruled that "knowingly" is not an element of the offense and that its inclusion in the information was surplusage. Consequently, the district court instructed the jury as follows: "To sustain a charge of unlawfully structuring a financial transaction ... the government must prove the following: First, that defendant structured or attempted to structure a transaction for the purpose of evading the currency transaction reporting requirements. And, second, that the transaction involved one or more domestic financial institutions."
20
31 U.S.C. § 5324(a)(3) provides: "No person shall, for the purpose of evading the reporting requirements of section 5313(a) [which requires banks to file currency transaction reports for any cash transaction exceeding $10,000] ... structure or assist in structuring ... any transaction...." In 1994, the Supreme Court held that conviction for structuring required proof that the "defendant acted with knowledge that his conduct was unlawful." Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). In response to Ratzlaf, Congress excepted violations of § 5324 from the penalty provisions of § 5322, which require willfulness, and added a penalty provision to § 5324 that did not require knowledge that structuring was illegal. Money Laundering Suppression Act of 1994, Pub.L. No. 103-325, § 411(a) and (c)(1), 108 Stat. 2160, codified at 31 U.S.C. §§ 5322(a), (b) and 5324(d). This eliminated the willfulness requirement imposed by Ratzlaf. United States v. Ahmad, 213 F.3d 805, 809 (4th Cir.2000); see also United States v. Lindberg, 220 F.3d 1120, 1122 n. 2 (9th Cir.2000) ("Ratzlaf has been superseded by statute"). After the amendments, the prosecution needs to prove "that there was an intent to evade the reporting requirement," but does not need to also prove "that the defendant knew that structuring was illegal." H.R. Rep. 103-438, at 22 (1994).3
21
A constructive amendment occurs when the defendant is charged with one crime but, in effect, is tried for another crime. Adamson, 291 F.3d at 614. That is not what occurred here. The jury was properly instructed on the elements of unlawful structuring of financial transactions. The district court did not err by refusing to instruct the jury to find an element that really isn't an element. The failure to include in the instructions surplusage from the information was not error because only the "essential elements" of the charge need be proven at trial. United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.1986). In any event, Pang failed to show that he was ambushed or misled in any way by the extraneous language in the information.
IV. BELATED TAX PAYMENTS
22
Pang argues that the district court erred in preventing him from offering evidence that, while awaiting trial in this criminal matter, he paid the IRS $459,227.59, the amount due for the tax years in question. Pang proffered this evidence to demonstrate a lack of intent to wilfully "evade or defeat" the tax laws. We review for abuse of discretion the district court's decision to exclude evidence. United States v. Alvarez-Farfan, 338 F.3d 1043, 1045 (9th Cir.2003).
23
The district court correctly ruled that evidence of belated tax payments, made while awaiting prosecution, is irrelevant. Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (subsequent intention to pay taxes is no defense to a past intention to evade taxes); United States v. Ross, 626 F.2d 77, 81 (9th Cir.1980) (same). Were the rule otherwise, tax evaders could avoid criminal prosecution simply by paying up after being caught.
IV. GRAND JURY SUBPOENA
24
Finally, Pang argues that the IRS abused the grand jury process by serving a grand jury subpoena on Pang's accountant when he declined to produce Pang's tax work papers. We review de novo alleged abuse of the grand jury process. United States v. Fuchs, 218 F.3d 957, 964 (9th Cir.2000).
25
On the day that Pang was visited by the IRS agents, two of the agents also called upon Pang's accountant, William Wan. Wan told the agents that he was in possession of work papers used to prepare Pang's tax returns. Wan left the room ostensibly to get the papers, but returned a few minutes later to tell the agents Pang's attorney had advised him not to voluntarily produce information without being served with a grand jury subpoena. The agents then served Wan with a grand jury subpoena. Later that day, Wan called one of the agents and agreed to voluntarily produce the subpoenaed records prior to the grand jury return date.
26
As we understand it, Pang's argument appears to be that the IRS agents misused the subpoena process to obtain information from Wan that they otherwise would not have gotten. We see no impropriety here. Nothing prohibits a subpoenaed grand jury witness from voluntarily consenting to an interview. United States v. Duncan, 570 F.2d 292, 293 (9th Cir. 1978) (per curam).
27
AFFIRMED.
Notes:
1
The card states:
[A]s a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws and related offenses.
In connection with my investigation of your tax liability or other matters, I would like to ask you some questions. However, first, I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way.
I also advise you that anything which you say, and documents that you submit may be used against you in any criminal proceedings which may be undertaken.
I advise you further that you may, if you wish, seek the assistance of an attorney before responding.
Do you understand these rights?
2
Fed.R.Evid. 902(9) provides:
Rule 902. Self Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
. . . .
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents related thereto to the extent provided by general commercial law.
3
Pang was charged with unlawful structuring occurring in 1996, so the 1994 amendments apply
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 25, 2017
Plaintiff-Appellee,
v No. 331537
Wayne Circuit Court
LARRY BERNARD GAULDING, LC No. 15-006371-01-FC
Defendant-Appellant.
Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.
PER CURIAM.
Defendant, Larry Gaulding, appeals as of right his jury trial convictions of manslaughter,
MCL 750.321, and tampering with evidence, MCL 750.483a(6)(b).1 The trial court sentenced
Gaulding as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 30 to
60 years for the manslaughter conviction and 3 to 10 years for the tampering with evidence
conviction. Because there are no errors warranting reversal, we affirm.
I. BASIC FACTS
Gaulding was convicted of causing the death of Ashton O’Hara on July 14, 2015, in
Detroit, and thereafter tampering with evidence of the crime. The prosecution presented
evidence that Gaulding picked up O’Hara, a male escort, and subsequently stabbed O’Hara and
ran over his body with a car. After twice striking O’Hara with his car, Gaulding left O’Hara,
who was seriously injured but still alive, on the street, and then went to have his damaged
windshield repaired. Soon thereafter, information from witnesses led the police to Gaulding,
who fled on foot when he was approached by the police. O’Hara’s DNA was found on
Gaulding’s clothing and in his car. The defense theory was that O’Hara and O’Hara’s associate
robbed and pulled a knife on Gaulding, who then acted in self-defense to fend them off, and that
the robbers drove away in Gaulding’s car after Gaulding managed to escape on foot. Gaulding
denied striking O’Hara with his car, and he claimed that the car was damaged sometime after it
was taken by O’Hara and O’Hara’s confederate. Gaulding admitted that he might have cut
1
The jury acquitted Gaulding of first-degree premeditated murder, MCL 750.316(1)(a).
-1-
O’Hara in self-defense during their altercation, but denied knowing how O’Hara ended up in the
street. O’Hara died from his injuries.
II. BRADY VIOLATION
A. STANDARD OF REVIEW
Gaulding first argues that the trial court abused its discretion by denying his motion for a
mistrial after the prosecutor’s late disclosure of photographs that purportedly depicted a bite
mark on Gaulding’s chest. He asserts that the late disclosure violated the rule in Brady v
Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). A trial court’s ruling on a
motion for a mistrial is reviewed for an abuse of discretion, People v Schaw, 288 Mich App 231,
236; 791 NW2d 743 (2010), as is the trial court’s determination of how to handle a discovery
violation, People v Jackson, 292 Mich App 583, 591; 808 NW2d 541 (2011). An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012).
“This Court reviews due process claims, such as allegations of a Brady violation, de novo.”
People v Stokes, 312 Mich App 181, 189; 877 NW2d 752 (2015).
B. ANALYSIS
“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady, 373 US at 87. To establish a Brady
violation, a defendant must prove: (1) that the prosecution suppressed evidence; (2) the evidence
was favorable to the accused; and (3) viewed in its totality, the evidence is material. People v
Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). “Evidence is favorable to the defense
when it is either exculpatory or impeaching.” Id. at 150. “To establish materiality, a defendant
must show that ‘there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.’ ” Id., quoting United States v
Bagley, 473 US 667, 682; 105 S Ct 3375; 87 L Ed 2d 481 (1985).
Here, the prosecutor’s disclosure of the photographs was untimely, even when
considering that the prosecutor only received the photographs on the second day of trial and
immediately disclosed them to the defense. See Kyles v Whitely, 514 US 419, 437; 115 S Ct
1555; 131 L Ed 2d 490 (1995) (stating that the government is held responsible for the evidence
in its control even if the prosecutor is unaware of the evidence). Gaulding asserts that if he had
received the photographs in a timely fashion, he would have sought an expert to determine the
source of the bite marks depicted in the photographs. Gaulding contends that if someone other
than O’Hara was determined to be the source, it would corroborate his testimony that he was in
the vehicle with two other people. We agree that, assuming that the photographs would have led
to evidence that someone other than O’Hara bit Gaulding, the evidence would have been
favorable to the defense in the sense that it would corroborate Gaulding’s testimony, thereby
lending him credibility. Nevertheless, we note that Gaulding has provided no affidavits or other
evidence of the potentially favorable “bite mark expert” testimony that he could have elicited if
the photographs were timely disclosed. With no offer of proof, we can only speculate on the
-2-
purported value of the photographs had they been timely disclosed. Regardless, the photographs
were certainly favorable to the defense—even in the absence of expert testimony regarding the
source of the bite marks—because they corroborated Gaulding’s testimony that he had a physical
confrontation with O’Hara.
Gaulding cannot, however, establish that the photographs were material, i.e., that there
was a reasonable probability that if the evidence had been timely disclosed to the defense the
result of the proceedings would have been different. Chenault, 495 Mich at 150. At best, if the
information was disclosed before trial, it would have yielded evidence corroborating Gualding’s
testimony that O’Hara and another individual were in the vehicle and that there was a physical
confrontation. However, there was other evidence corroborating that a third individual was
possibly in the vehicle, including DNA evidence. Moreover, the jury credited Gaulding’s
testimony to an extent given that it acquitted him of first-degree premeditated murder and instead
found him guilty only of voluntary manslaughter, which requires a finding of adequate
provocation. See People v Mendoza, 468 Mich 527, 540-541; 664 NW2d 685 (2003) (reciting
elements of voluntary manslaughter). In addition, although the photographs were disclosed late,
the defense received them before the trial concluded and was able to use them effectively to
corroborate Gaulding’s testimony with regard to the physical altercation between himself and
O’Hara. On this record, we find that the late disclosure of the photographs did not undermine
confidence in the outcome. In sum, there was no Brady violation in this case.
Furthermore, to the extent that Gaulding argues that the trial court abused its discretion in
denying his request for a mistrial, we disagree. A mistrial should be granted “only for an
irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.” Schaw, 288 Mich App at 236 (citation and quotation marks omitted). The exercise of the
trial court’s discretion to fashion an appropriate remedy for a discovery violation involves
balancing “the interests of the courts, the public, and the parties in light of all the relevant
circumstances, including the reasons for noncompliance.” People v Banks, 249 Mich App 247,
252; 642 NW2d 351 (2002). To be entitled to relief for a discovery violation, the defendant must
show actual prejudice. People v Rose, 289 Mich App 499, 525-526; 808 NW2d 301 (2010).
The only remedy the defense sought in this case was a mistrial. The defense argued that
if the photographs been timely disclosed, the defense might have obtained an expert opinion that
the bite mark was made by a third person, which would have supported Gaulding’s testimony
that there were three people in his car when he had his confrontation with O’Hara. In denying
Gaulding’s motion for the “extreme remedy” of a mistrial, the trial court appropriately weighed
the various interests at issue, including the fact that the photographs were produced “still
relatively early on in the trial” and that the defense was still able to use them to support its
argument that a physical confrontation occurred inside Gaulding’s car. The trial court also
considered that the grounds for Gaulding’s request for a mistrial were principally rooted in
speculation. The court observed that the photographs depicted a “diffused injury” that “may or
may not be” a bite mark, and that, even if the injury were a bite mark, the potential use of an
expert to obtain a favorable and admissible opinion was speculative at best. Further, when
fashioning a remedy for a discovery violation, the trial court is to consider the reasons for
noncompliance. Banks, 249 Mich App at 252. Here, the prosecutor explained to the trial
court—and the detective in charge of the case subsequently testified before the jury—that there
was a delay in producing the photographs because they had been filed with the wrong CRISNET
-3-
report. Additionally, Gaulding has not demonstrated actual prejudice. Rose, 289 Mich App at
525-526. Gaulding has provided no affidavits or other evidence that he would have been able to
obtain favorable testimony from a bite mark expert or that he could have even located such an
expert. In the absence of an offer of proof, we are left with nothing more than mere speculation
about the importance of the bite mark. Finally, the record does not support Gaulding’s claim that
without the “crucial” testimony of a bite mark expert, the jury had “no corroborating evidence”
to evaluate Gaulding’s testimony that a third person was in the car. Instead, a forensic scientist
testified that DNA from three or more individuals was found on Gaulding’s blue jeans. That
DNA included O’Hara, but the other contributors could not be identified. Also, DNA from
under O’Hara’s fingernails and on his hands indicated a mixture from O’Hara and another
person, who could not be identified. Gaulding’s lawyer used this evidence in closing argument
to argue that because Gaulding had been excluded as a contributor on those items, the evidence
supported Gaulding’s testimony that a third person was in the car. For these reasons, the trial
court did not abuse its discretion in ruling that the late production of the photographs was not
grounds for a mistrial.
III. DEPARTURE SENTENCE
A. STANDARD OF REVIEW
Gaulding also argues that he is entitled to be resentenced under People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015), because the trial court’s departure sentence is unreasonable.
The trial court exceeded the minimum sentencing guidelines range by 11 years when it sentenced
Gaulding to 30 to 60 years’ imprisonment for the manslaughter conviction. In Lockridge, our
Supreme Court held that a court may exercise its discretion to depart from the applicable
guidelines range, and “[a] sentence that departs from the applicable guidelines range will be
reviewed by an appellate court for reasonableness.” Id. at 392. “Resentencing will be required
when a sentence is determined to be unreasonable.” Id.
B. ANALYSIS
In People v Steanhouse, 313 Mich App 1, 46-47; 880 NW2d 297 (2015), lv granted 499
Mich 934 (2016), this Court adopted the “principle of proportionality” standard from People v
Milbourn, 435 Mich 630; 461 NW2d 1 (1990), as the appropriate standard for determining the
reasonableness of a sentence under Lockridge. The Steanhouse Court held “that a sentence that
fulfills the principle of proportionality under Milbourn, and its progeny, constitutes a reasonable
sentence under Lockridge.” Steanhouse, 313 Mich App at 47-48. Under this standard, a trial
court is required to impose a sentence that is “ ‘proportionate to the seriousness of the
circumstances surrounding the offense and the offender.’ ” Steanhouse, 313 Mich App at 45,
quoting Milbourn, 435 Mich at 636. In Steanhouse, this Court set forth a non-exclusive list of
factors that Michigan Courts had previously considered under the proportionality standard,
including,
(1) the seriousness of the offense, (2) factors that were inadequately considered by
the guidelines, and (3) factors not considered by the guidelines, such as the
relationship between the victim and the aggressor, the defendant’s misconduct
-4-
while in custody, the defendant’s expressions of remorse, and the defendant’s
potential for rehabilitation. [Steanhouse, 313 Mich App at 46 (citations omitted).]
At sentencing, the trial court provided a lengthy explanation for why the upward
departure in this case was reasonable. In particular, the court referenced Gaulding’s extensive
criminal history, discussing at length the number, frequency, and general character of his prior
convictions. The trial court determined that the applicable guidelines did not “capture the
extent” of Gaulding’s criminal history because it “capture[d]” only 4 of his 11 felony convictions
and 7 of his more than 60 misdemeanor convictions. The court also considered Gaulding’s
potential for rehabilitation, observing that there had been an “extraordinary effort by the criminal
justice system to give [him] every opportunity to amend [his] behavior” through probation, jail,
and prison. The court observed that on more than one occasion, Gaulding was not released on
parole until he had served his maximum sentence “demonstrating that [the] Michigan
Department of Corrections did not feel it was in the public’s best interest to have [Gaulding]
discharged” before his maximum was served. In addition, the court considered unique factors in
this case that were not encompassed by the guidelines, observing that Gaulding’s conduct of
stabbing O’Hara, leaving him in the road to die, and going “about his business” showed his
“callousness and disregard for human life.” This callous conduct, coupled with Gaulding’s
extensive criminal history, demonstrated to the trial court Gaulding’s distorted view of the law
and human life. On this record, the trial court’s stated reasoning for imposing Gaulding’s
upward departure sentence met the threshold of proportionality pursuant to Milbourn, and was
therefore a reasonable sentence as contemplated by Lockridge.2
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
2
In challenging the proportionality of his departure sentence, Gaulding argues that the minimum
sentence “has the appearance of the judge disagreeing with the jury’s acquittal on the more
serious charge, rather than reasonableness.” However, the trial court provided a detailed
explanation for why the 11-year upward departure was reasonable in light of the circumstances
surrounding the offense and Gaulding’s prior criminal record. Indeed, Gaulding recognizes that
the trial court considered that his criminal history was inadequately considered by the guidelines,
but seeks to diminish that factor with the unconvincing statement that his 61 prior misdemeanor
convictions were merely “vehicle-related” and “nonviolent.” He fails to acknowledge that seven
of his prior felony convictions are not encompassed by the guidelines. Gaulding also fails to
address his recidivism and poor prognosis for rehabilitation as appropriate considerations under
the Milbourn proportionality standard.
-5-
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543 U.S. 955
TOWN OF CASTLE ROCK, COLORADOv.GONZALES, INDIVIDUALLY AND AS NEXT BEST FRIEND OF HER DECEASED MINOR CHILDREN, GONZALES ET AL.
No. 04-278.
Supreme Court of United States.
November 1, 2004.
1
C. A. 10th Cir. Certiorari granted. Reported below: 366 F. 3d 1093.
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558 F.2d 1034
Anastasiav.U. S. Board of Parole
No. 77-1085
United States Court of Appeals, Seventh Circuit
6/23/77
1
N.D.Ill.
AFFIRMED
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290 S.W.2d 211 (1956)
REYNOLDS METALS COMPANY and the Travelers Insurance Company, Appellants,
v.
William J. BRUMLEY, Appellee.
No. 5-927.
Supreme Court of Arkansas.
May 14, 1956.
Dissenting Opinion May 21, 1956.
*212 Wright, Harrison, Lindsey & Upton, Little Rock, for appellants.
Tom Gentry, Little Rock, Joe W. Mc-Coy, Malvern, for appellee.
MILLWEE, Justice.
This case involves the applicable statute governing the time limit within which a claim for additional compensation must be filed under the Workmen's Compensation Law, Ark.Stats. § 81-1301 et seq.
There is no dispute in the material facts. Appellee, William J. Brumley, suffered a cerebral thrombosis while working for appellant, Reynolds Metals Company, on September 20, 1950, resulting in an immediate loss of vision in the left eye and a slight paralysis of the left side of his body. His claim for compensation was controverted by the company and its insurance carrier. After hearings before one commissioner and the full Commission, the latter, on March 6, 1952, found that appellee had sustained a compensable accidental injury arising out of the course of his employment. There was an award of compensation for temporary total disability at the rate of $25 per week from December 2, 1950 to January 16, 1951 and, beginning with the latter date, compensation at the same weekly rate for a period of 100 weeks for the loss of vision in the left eye. It was further directed that appellants pay the reasonable medical and hospital bills incurred by appellee as a result of the injury. There was no appeal from this award.
The last payment of the 100 weeks compensation awarded for loss of vision was made to appellee on December 8, 1952, and he signed a "Final Receipt" for the benefits awarded. Appellee continued working on the assumption and medical finding that the disability from the injury to his left side was temporary in nature. On October 26, 1953, he became unable to work and reported to Dr. Cole, a company doctor, who sent him to Dr. Robert Watson in Little Rock, Arkansas on October 30, 1953. Appellee was placed in the Baptist Hospital where he remained nine days under the observation, examination and care of Dr. Watson who was then under the mistaken belief that appellee had a brain tumor.
The letter from appellants to Dr. Watson for the Little Rock appointment stated that he was to see appellee for examination only, but appellee was never so advised. Upon appellee's release from the hospital on November 7, 1953, Dr. Watson gave him a prescription for 100 tablets of nicotinic acid, to be taken over a period of thirty days, and advised appellee to rest and take reasonable exercise without over-exertion. According to Dr. Watson, this constituted the only known treatment for one in appellee's condition which had gradually progressed since the original injury from total temporary disability to total permanent disability. Appellee made additional trips to see Dr. Watson on November 23, 1953 and February 10, 1954. The insurance carrier paid appellee for the medicine prescribed by Dr. Watson and his expenses incurred on the first trip to Little Rock on December 2, 1953. It also paid appellee's hospital bill of $152.55 on February 4, 1954 and made a final payment to Dr. Watson for his services on February 18, 1954.
Appellee filed his claim for additional compensation for total and permanent disability on May 4, 1954. At a hearing before a single commissioner on September 14, *213 1954, appellants pleaded Section 18(b) of the Workmen's Compensation Law as a complete bar to the claim. This section now appears as Ark.Stats. § 81-1318(b), 1955 Supplement, and reads: "Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of accident, which ever is greater." Appellants' plea was sustained by order of the commissioner on November 4, 1954.
On appeal to the full Commission, a hearing was held January 31, 1955 in which appellants pleaded Section 26 of the Compensation Act as a bar to the claim. This section now appears as Ark.Stats. § 81-13%, 1955 Supplement, and provides: "Modification of awards.Except where a joint petition settlement has been approved the Commission may at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon its own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate, review any compensation order award or decision, and upon such review may make an order or award terminating, continuing, decreasing or increasing for the future the compensation previously awarded, subject to the maximum limits provided for in this Act (§§ 81-1301-81-1349). Such review and subsequent order or award shall be made in accordance with the procedure prescribed in Section 23 (§ 81-1323) hereof. No such review shall affect any compensation paid pursuant to a prior order or award. The Commission may at any time correct any clerical For reversal of the circuit court judgment, appellants contend, as the full Commission found, that Section 81-1318 (b), supra, has to do only with the time of filing a claim when voluntary payments of compensation have been made as distinguished from payments made as the result of an award or order of the Commission after a hearing. We find no such distinction in the statute which is clearly made applicable to a claim for additional compensation in cases where compensation for disability has been paid on account of injury. The finstant case is of that character. In Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796, this section, which then appeared as Section 18(a), was held to impose an absolute limitation on the time for filing a claim for additional compensation under the Compensation Act. In Ragon v. Great American Indemnity Co., 224 Ark. 387, 272 S.W2d 524, we held that the cost of medicine and medical, surgical or hospital services was a part of "compensation" under Sections 2(i)[1] and 11[2] of the Compensation Act. This decision was handed down December 20, 1954 and doubtless prompted appellants' change of defense at the hearing before the full Commission on January 31, 1955.
There appears to be some merit in appellee's contention that he has not sought a review or modification of the original award within the meaning of Section 81-1326, supra, which merely constitutes a grant of additional power to the Commission shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require." *214 and not a statute of limitations. However, if it be conceded that said section is a statute of limitations, there is sufficient ambiguity between it and Section 81-1318(b) as to cast considerable doubt as to which one is applicable to the instant proceeding. In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the shorter period of limitation is to be preferred and adopted. Jefferson v. Nero, Ark, 280 S.W. 2d 884. This rule is in harmony with our settled policy of giving a broad and liberal construction to the provisions of the Compensation Act to effectuate its purposes and the further policy of resolving doubtful cases in favor of the claimant. E. H. Noel Coal Company v. Grilc, 215 Ark. 430, 221 S.W.2d 49; Triebsch v. Athletic Mining & Smelting Co, 218 Ark. 379, 237 S.W.2d 26.
By our holding in the Ragon case, supra, the furnishing of medicines and medical services to appellee in November and December, 1953 and February, 1954 constituted payment of "compensation" to appellee within the meaning of Section 81-1318(b), supra. This holding follows the general rule that where an employer or his insurance carrier has furnished an injured employee medical and hospital services, this constitutes a payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation. See cases from other jurisdictions cited in 144 A.L.R. 617. In this connection, we cannot agree with appellants' further contentions that the medical services performed by Dr. Watson were in the nature of "an examination only" and that, even if such services constituted "treatment," same would not toll the statute because they were not furnished pursuant to a requirement of the Commission. The original award required appellants to pay reasonable medical and hospital bills incurred as a result of appellee's injury and it is undisputed that Dr. Watson prescribed medicine to be taken over a 30-day period along with rest and reasonable exercise as the only treatment known to him for appellee's condition. In our opinion such services amounted to treatment and not merely an examination, as was true in Wilson v. Border Queen Kitchen Cabinet Co, 221 Ark. 580, 254 S. W.2d 682, relied on by appellants. We are of the further opinion that appellants must be held to have waived the requirement of a Commission order by voluntarily furnishing the medical services after the six months period provided in Section 81-1311. See Blahut v. Liberty Creamery Company, Mo.App, 145 S.W.2d 506; Buecker v. Roberts, Mo.App, 260 S.W.2d 325; Ketchell v. Wilson & Co. 138 Kan. 97, 23 P.2d 488, and other cases to the same effect which are cited in Fifth Decennial Digest, Workmen's Compensation,
It follows that appellee filed his claim for additional compensation well within one year from the date of the last payment of compensation as provided in Section 81-1318(b) which we find to be the applicable statute of limitations. The judgment is accordingly affirmed.
GEORGE ROSE SMITH, Justice (dissenting).
I would remand the case to the Commission for its determination of a question of fact that was not reached at the original hearing. The appellee was sent to Dr. Watson for examination only. The required examination proved to involve elaborate procedures that kept the patient in the hospital for more than a week and that were extremely painful. Partly, if not wholly, to alleviate this pain Dr. Watson prescribed sedatives and the use of nicotinic acid. He also told the patient that he should take routine exercise and avoid overexertion in the future. It seems to me that the record presents an issue of fact as to whether these matters amounted to treatment furnished by the employer. If the Commission should hold that the medication and advice were merely incidental to the diagnostic examination and did not amount to the giving of treatment, that holding would in my opinion be supported by substantial evidence. Consequently I think the majority have decided an issue of fact that should be determined by the Commission alone.
NOTES
[1] This section appears as Ark.Stats. § 81-1302(i), 1955 Supplement and reads: "`Compensation means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in Section 11 (§ 81-1311), and funeral expense."
[2] This is Ark.Stats. § 81-1311, 1955 Supplement and reads in part: "The employer error in any compensation order or award." The full Commission sustained appellants' new plea and again dismissed appellee's claim. On appeal to Circuit Court this finding was reversed and the claim was held to be filed within the time prescribed by law.
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42 F.2d 184 (1930)
SLEE
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 237, October Term, 1929.
Circuit Court of Appeals, Second Circuit.
June 16, 1930.
Newell W. Ellison, of Washington, D. C., and J. Harry Covington and Wm. Merrick Parker, both of Washington, D. C. (Covington, Burling & Rublee, of Washington, D. C., of counsel), for petitioner.
G. A. Youngquist, Asst. Atty. Gen., and J. Louis Monarch and Norman D. Keller, Sp. Asst. Attys. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Joe S. Franklin, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for commissioner.
Before L. HAND, CHASE, and MACK, Circuit Judges.
L. HAND, Circuit Judge.
During each of the years in question Slee, the petitioner, made gifts to the American Birth Control League, which he deducted from his income. The Commissioner, and later the Board, disallowed these, and the only question is whether section 214 (a) (11) (B) of the Internal Revenue Act of 1921 (42 Stat. 227), and section 214 (a) (10) of the Revenue Acts of 1924 and 1926 (26 USCA § 955 (a) (10), include the League. Those sections allow the deduction of gifts made to "any corporation * * * organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, including posts of the American Legion or * * * for the prevention of cruelty to children or animals." The question is whether the League is organized for charitable, scientific or educational purposes, and, if so, whether those are its exclusive purposes.
It at first was an unincorporated association, but secured incorporation in New York in September, 1922, and its declared objects were as follows: "To collect, correlate, distribute and disseminate lawful information regarding the political, social and economic facts of uncontrolled procreation. To enlist the support and co-operation of legal advisors, statesmen and legislators in effecting the lawful repeal and amendment of state and federal statutes which deal with the prevention of conception." To publish a magazine "in which shall be contained reports and studies of the relationship of controlled and uncontrolled procreation to national and world problems." In operation it has gone somewhat further than these projects. It maintains a "research department" in New York in charge of a physician, a medical, and a clinical, director. Large numbers of married women come to the clinic for advice, are examined, and if in the judgment of the physician their health demands but not otherwise, are told how to prevent conception. Unmarried women are not received. The officials keep elaborate records of the work, follow *185 up the cases, and publish the results at large to the medical profession. At times patients are charged for the service, but the work as a whole goes on at a loss and has to be supported by gifts. The only part of its activities which can be thought to touch upon legislation is in directing persons how best to prepare proposals for changes in the law, and in distributing leaflets to legislators and others recommending such changes, chiefly by bringing before them such information as is supposed to "enlighten" their minds. These suggest and advocate a relaxation in existing restraints.
That the League is organized for charitable purposes seems to us clear, and the Board did not find otherwise. A free clinic, or one where only those pay who can, is a part of nearly every hospital, a recognized form of charitable venture. We can see no difference that this is confined to married women who ought not bear children both for their own, and the children's, sake. Health is as much at stake as though it attempted the general prevention of sickness. Nor does it matter that there are many who think the cure worse than the disease; there are people who object to venereal prophylaxis. It is enough that the object was to maintain health without profit by lawful means; that has been a recognized kind of charity from time immemorial. The collection and publication of the information so obtained was also a legitimate scientific enterprise, like any collection of medical data. We cannot discriminate unless we doubt the good faith of the enterprise.
This raises the only question which seems to us important, which is, whether the League is also agitating for the repeal of laws preventing birth control. The Board did not throw any doubt upon the purposes as presented, or intimate that more was meant than met the ear, but it thought that the declaration in the charter of a purpose to "enlist the support * * * of * * * legislators to effect the lawful repeal" of existing laws, and the measures taken to bring this to pass, prevented the League from being "exclusively" charitable. Political agitation as such is outside the statute, however innocent the aim, though it adds nothing to dub it "propaganda," a polemical word used to decry the publicity of the other side. Controversies of that sort must be conducted without public sub-vention; the Treasury stands aside from them. Nevertheless, there are many charitable, literary and scientific ventures that as an incident to their success require changes in the law. A charity may need a special charter allowing it to receive larger gifts than the general laws allow. It would be strained to say that for this reason it became less exclusively charitable, though much might have to be done to convince legislators. A society to prevent cruelty to children, or animals, needs the positive support of law to accomplish its ends. It must have power to coerce parents and owners, and it does not lose its character when it seeks to strengthen its arm. A state university is constantly trying to get appropriations from the Legislature; for all that, it seems to us still an exclusively educational institution. No less so if, for instance, in Tennessee it tries to get leave to teach evolutionary biology. We should not think that a society of booklovers or scientists was less "literary" or "scientific," if it took part in agitation to relax the taboos upon works of dubious propriety, or to put scientific instruments upon the free lists. All such activities are mediate to the primary purpose, and would not, we should think, unclass the promotors. The agitation is ancillary to the end in chief, which remains the exclusive purpose of the association. Trinidad v. Sagrada Orden, 263 U. S. 578, 44 S. Ct. 204, 68 L. Ed. 458.
So far as the society at bar sought to relieve itself of the restraints of law in order the better to conduct its charity, we might indeed hold that it fell within the class of which we have just given some instances. So far, however, as its political activities were general, it seems to us, regardless of how much we might be in sympathy with them, that its purposes cannot be said to be "exclusively" charitable, educational or scientific. It may indeed be for the best interests of any community voluntarily to control the procreation of children, but the question before us is whether the statute covers efforts to proselytize in that or other causes. Of the purposes it defines "educational" comes the closest, and when people organize to secure the more general acceptance of beliefs which they think beneficial to the community at large, it is common enough to say that the public must be "educated" to their views. In a sense that is indeed true, but it would be a perversion to stretch the meaning of the statute to such cases; they are indistinguishable from societies to promote or defeat prohibition, to adhere to the League of Nations, to increase the Navy, or any other of the many causes in which ardent persons engage.
We cannot say that the Board was without warrant in concluding that this aspect of the League's work was not confined solely to relieving its hospital work from legal obstacles. Indeed the charter does not mention the *186 clinic or anything of the sort; it speaks only of the League's scientific projects, its general purpose to secure the repeal of laws which deal with preventing conception, and the publication of the magazine. This is not indeed conclusive; in practice the League might have abandoned all such efforts except as they conduced to a relief of the clinic. The evidence passes somewhat lightly over this feature of the work, for obvious reasons, but it does not disclaim the charter, and, if it did, the Board was not obliged to conclude that the abandonment of what had been so formally declared was final. Indeed, were we in a position to pass upon the evidence de novo, we should be somewhat slow to believe that the ends proposed did not still include convincing Legislatures and other influential persons that it was desirable in the interests of the moral and social well-being of the community that all persons should be free to control the number of their children. However commendable this may be and we mean to raise no question as to it it is not in our judgment one of those purposes which Congress meant to assist. Our review is limited to the correction of obvious errors; we cannot say that the Board committed any here.
Decision affirmed.
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718 N.W.2d 358 (2006)
476 Mich. 854
Embra BROWN, Petitioner,
v.
MICHIGAN PAROLE BOARD, Respondent.
Docket No. 130319, COA No. 261811.
Supreme Court of Michigan.
July 31, 2006.
On order of the Court, the application for leave to appeal the December 6, 2005 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for entry of default is DENIED.
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760 So.2d 310 (2000)
STATE of Louisiana
v.
Robert M. MYERS a/k/a Robert Williams.
No. 99-K-1849.
Supreme Court of Louisiana.
April 11, 2000.
Opinion on Rehearing May 12, 2000.
*311 Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Joseph E. Lucore, New Orleans, for Appellant.
Paul Charles Fleming, Jr., New Orleans, for Respondent.
MARCUS, Justice[*]
Robert M. Myers was indicted by the grand jury for the manslaughter of New Orleans police officer Joseph Thomas and the manslaughter of Jessie Lopez in violation of La. R.S. 14:31. The indictment charged that the manslaughters were committed during the perpetration of a felony, specifically a violation of the Controlled *312 Dangerous Substances Act. After trial by jury, defendant was found guilty as charged. He was sentenced to serve twenty years at hard labor on each count, with the sentences to run concurrently. The court of appeal reversed defendant's convictions and sentences.[1] Upon the state's application, we granted certiorari to review the correctness of that decision.[2]
Evidence at trial established that the New Orleans Police Department received information over its narcotics hotline that a Cuban male was selling crack cocaine at 1118 St. Andrew Street in New Orleans. On July 18, 1996, detectives from the narcotics unit set up a surveillance of the house at that address. Detective Keith Fredericks was assigned primary responsibility for the surveillance, and watched the house from a position directly across the street. Detectives Paul Toye and Joseph Thomas also conducted surveillance from a different location. All three detectives observed a white male arrive at the residence on a bicycle at approximately 8:15 p.m. This white male was wearing a dark t-shirt and jeans, and was later identified as defendant. Defendant entered the residence using a key.
The detectives did not observe any narcotics activity prior to defendant's arrival. However, about fifteen minutes after defendant entered the residence, they saw a woman approach the house and knock on the door. Defendant answered the door and had a conversation with the woman. She handed him what appeared to be U.S. currency and he retrieved an object from inside the house and handed it to her. The detectives observed two other individuals approach the house and make similar transactions. They did not observe a Cuban male on the premises at any time during their surveillance.
Detectives Toye and Thomas sought a search warrant based on the tip from the narcotics hotline and on their own observations of what appeared to be narcotics activity. A search warrant was obtained at 10:09 p.m. Approximately eight officers proceeded to defendant's residence to execute the warrant. Upon their arrival, they observed a Cuban male, later identified as Jessie Lopez, sitting on the front steps. As soon as Lopez saw the officers, he ran inside the house and locked the door behind him. Detectives Toye, Thomas, Michael Harrison, and Gabriel Favoroth pursued Lopez inside the house after announcing themselves as police officers and forcing open the door with a battering ram.
Defendant was apprehended by Detective Harrison in the den. Detective Harrison ordered him to the floor and defendant cooperated. Detectives Toye and Thomas proceeded to the rear of the house, where they observed a closed bedroom door with light shining from underneath it. Believing that Lopez had fled into that bedroom, Detective Thomas opened the door. Lopez immediately fired two shots, one of which hit Detective Thomas in the chest. Detective Thomas backed out of the doorway and fell to the ground in the hallway. At that point, Detective Toye could see that Lopez had barricaded himself between the bed and wall and was hiding behind a bucket. When Lopez continued to fire, Detective Toye shot and killed Lopez. Detective Thomas was taken to the hospital by a fellow officer. He died about an hour later.
The case was re-classified as a homicide investigation once Lopez was determined to be dead at the scene. Sergeant Cynthia Patterson of the homicide division took charge of the investigation. She and Detective Donald Niles conducted a search of the residence. In the bedroom where Lopez was killed they found a .25 caliber automatic weapon and several empty shells near his body. In that same room they also found eight rocks of crack cocaine *313 wrapped in individual packages, and various drug paraphernalia including syringes, razor blades, and a crack pipe. The officers also discovered some Vicodin pills hidden inside an eyeglass case on the bedside table. In several rooms, including the den where defendant was apprehended, they found loose marijuana and partially smoked marijuana cigarettes.
Peter Richarme testified that he managed the duplex at 1116-1118 St. Andrew Street for his mother. He rented the downstairs apartment to defendant, and defendant subsequently brought in Lopez as a roommate. At defendant's request, the receipt for the June 1996 rent was made to defendant, but the receipt for the July 1996 rent was made to Lopez. Mr. Richarme stated that on the two or three occasions he had visited the property, both defendant and Lopez were there. To his knowledge, defendant and Lopez were both living there up until the day of the shooting.
The tenants of the upstairs apartment, Kirk Hooter and Tammy Smelley, also testified. They both stated that defendant had originally lived with Lopez downstairs, but that he had moved upstairs due to a falling out with Lopez. On the night of the shooting, defendant had come inside the upstairs apartment after getting off work, but headed downstairs to speak to Lopez about a job Lopez had asked defendant to secure for him. Ms. Smelley testified that she thought crack cocaine was sold from the downstairs apartment. Mr. Hooter also stated that he believed Lopez was involved in selling narcotics.
The sole issue presented for our consideration is whether there is sufficient evidence to support defendant's convictions for the manslaughter of Officer Joseph Thomas and the manslaughter of Jessie Lopez while engaged in the perpetration of a violation of the Controlled Dangerous Substances Act.
When considering a claim of insufficient evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).
La. R.S. 14:31 defines the crime of manslaughter to include what is known as "felony manslaughter." The statute provides:
Manslaughter is:
* * *
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person.
This court interpreted the reach of this statute in State v. Garner, 238 La. 563, 115 So.2d 855 (1959). In that case the defendant was involved in an argument with a bartender and lunged at him with a knife. Acting in self-defense, the bartender pulled a gun and fired a shot that missed the defendant but hit and killed an innocent bystander. The defendant was charged with manslaughter during the perpetration of an attempted murder. Although the defendant did not pull the trigger himself, the state's theory was that in lunging at the bartender the defendant had set into motion a series of events that naturally led to the death of the bystander.
In evaluating whether the felony manslaughter doctrine extended to any death that occurred during the perpetration of a felony, the court carefully examined the statutory language. Concluding that adopting the state's theory "would be amending and enlarging the scope of the statute," the court held that the felony manslaughter doctrine only applied to a defendant if he did the act of killing or the act was done by an accomplice in the underlying *314 felony. The court relied on the rule requiring strict construction of penal statutes, and reasoned:
In LSA-R.S. 14:30-31, the meaning of the word "offender" is not spelled out. We feel that its meaning can best be discovered by considering it in association with its accompanying words. In LSA-R.S. 14:31, it is recited that a homicide is committed when the "offender" is engaged in the perpetration or attempted perpetration of a felony not enumerated in Article 30 or any intentional misdemeanor directly affecting the person. No mention is made therein that the "offender" is responsible for the result of a self defensive act committed by the person attacked. No intimation is made that the "offender" stands in the shoes of the person protecting his person and property with arms. We believe, as did the trial judge, that the legislative intent in employing the word "offender" contemplated the actual killer. A consideration of the term "offender" in connection with the words accompanying it precludes our affirmation of the theory advanced by the State; it is quite obvious that the Legislature overlooked a situation similar to the instant one. 238 La. at 585-86, 115 So.2d at 863-64.
The Garner court was constrained to conclude that the defendant was not liable for the death of the innocent bystander because the defendant did not pull the trigger himself and the bartender who did the actual shooting was not acting in concert with the defendant. The court appeared dissatisfied with the particular result mandated by the statute, but recognized that it is "a matter which addresses itself to the lawmakers." 238 La. at 587, 115 So.2d at 864.
The holding of Garner was revisited by this court in State v. Kalathakis, 563 So.2d 228 (La.1990). In Kalathakis, the police conducted a raid on a mobile home shared by the defendant and a man named Patrick Langley who were suspected of using the mobile home to manufacture drugs. When the police arrived on the scene they observed a heavily armed man, later identified as Larry Calhoun, leave the home. Calhoun ran when he realized the officers were approaching, and he was pursued by several officers. Approximately one-quarter mile from the mobile home Calhoun turned and fired at the police. The officers returned fire and killed him. In the meantime, the rest of the police team entered the mobile home. One officer outside could see through a bedroom window that the defendant was armed and poised to fire on the officers when they entered the room. That officer broke the window and ordered the defendant to drop her weapon. The defendant was convicted of attempting to manufacture methamphetamine, the manslaughter of Calhoun, and the attempted manslaughter of the officer who was about to enter the bedroom. The court of appeal affirmed her conviction for the manslaughter of Calhoun, reasoning that by manufacturing drugs and arming herself, the defendant had set in motion a chain of events that resulted in Calhoun's death.
This court reversed the defendant's conviction for felony manslaughter. Although the state urged us to modify Garner and adopt a less restrictive rule of criminal liability in felony manslaughter cases, we stated that "even if we were inclined" to do so, "the evidence in the present case was insufficient for a rational juror to conclude that defendant's conduct related to the manufacturing of drugs was a substantial factor in bringing about Calhoun's death." 563 So.2d at 233. Under the facts presented in Kalathakis, it was simply unnecessary for the court to go beyond the Garner rule.
We explained in Kalathakis that the felony murder doctrine operates as a substitute for the mental element of intent, but the physical element of the defendant's act or conduct in causing the death must still be proved. 563 So.2d at 231. It has long been recognized that "the thing which is *315 imputed to a felon for a killing incidental to his felony is malice and not the act of killing." Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476 (1958). In ascertaining the circumstances under which this physical element may be satisfied, our inquiry begins with the provisions of our felony manslaughter statute.
The Louisiana legislature has defined felony manslaughter as a homicide committed without intent "[w]hen the offender is engaged in the perpetration or attempted perpetration of [an unenumerated] felony." La. R.S. 14:31(A)(2). A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and the purpose of the provision. La. R.S. 14:3; State v. Leak, 306 So.2d 737, 738 (La.1975). Courts are not empowered to extend the terms of a criminal provision to cover conduct which is not included within the definition of the crime. La. R.S. 14:3; State v. Amato, 96-0606, p. 5 (La.App. 1st Cir.6/20/97); 698 So.2d 972, 979.
We are forced to conclude, as did the Garner court, that by employing the term "offender" in the felony manslaughter statute, the legislature has prescribed that the physical element may only be shown by proof that the defendant or an accomplice performed the direct act of killing. Taken in the context of the surrounding words, the term "offender" plainly refers to the person who performed the act of killing while simultaneously engaged in the perpetration of an unenumerated felony. The "offender" may also be any person jointly engaged in the felonious activity with the actual killer according to the well established rule that all persons concerned in the commission of a crime are liable for the criminal acts of the other participants. La. R.S. 14:24; State v. Anderson, 97-1301, p. 5 (La.02/06/98); 707 So.2d 1223, 1224. However, because the statute defines felony manslaughter to include only those killings committed by one acting in furtherance of a felony, it precludes criminal liability for deaths that are not at the hands of a defendant or his cofelons.
Our approach is in accordance with that taken by the vast majority of states that have considered this issue.[3] Generally referred to as the "agency" theory of liability, this approach holds that "the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise." State v. Canola, 73 N.J. 206, 374 A.2d 20, 23 (1977). Therefore, a felon is not liable for his cofelon's death if the co-felon is killed by a victim or a police officer attempting to thwart the crime. See Campbell v. State, 293 Md. 438, 444 A.2d 1034, 1042 (1982); Jackson v. State, 92 N.M. 461, 589 P.2d 1052, 1052 (1979); State v. Crane, 247 Ga. 779, 279 S.E.2d 695, 696 (1981); State v. Severs, 759 S.W.2d 935, 938 (Tenn.Crim. App.1988). On the other hand, the defendant is responsible for any lethal acts perpetrated by his co-felons in furtherance of their common design. See Campbell, 444 A.2d at 1042; Redline, 137 A.2d at 476; People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 134 (1965). Several courts employing the agency theory have noted that any extension of felony murder liability beyond acts committed by *316 the defendant or his co-felon is exclusively a legislative matter. See Severs, 759 S.W.2d at 938; Crane, 279 S.E.2d at 697; State v. Bonner, 330 N.C. 536, 411 S.E.2d 598, 604 (1992).
A minority of jurisdictions have adopted the so-called "proximate cause" theory in felony murder cases[4], but generally only when such a theory is mandated or supported by the jurisdiction's statutory language.[5] Under this theory, a defendant is liable for "any death proximately resulting from the unlawful activitynotwithstanding the fact that the killing was by one resisting the crime." State v. Lowery, 178 Ill.2d 462, 227 Ill.Dec. 491, 687 N.E.2d 973, 975-76 (1997). This theory is often limited by the requirement that the death be a foreseeable consequence of the felony. See People v. Hernandez, 82 N.Y.2d 309, 604 N.Y.S.2d 524, 624 N.E.2d 661, 665 (1993).
Under Louisiana's felony manslaughter statute, the prosecution was required to prove that defendant and Lopez were engaged in the perpetration of a felony not enumerated in Articles 30 or 30.1 and that Lopez killed in furtherance of the commission of this felony. A violation of the Controlled Dangerous Substances Act, La. R.S. 40:961 et seq., is a felony not enumerated in Articles 30 or 30.1. Violations of the Act include a variety of offenses, including distribution of narcotics, possession, and possession with the intent to distribute. La. R.S. 40:967(A), (C).
No less than three officers observed defendant making drug sales from his home. When the residence was searched, individually wrapped pieces of crack cocaine and various drug paraphernalia were found. The evidence also established that both defendant and Lopez resided at the lower apartment on St. Andrew Street. The police had originally received a tip that a Cuban male was selling crack cocaine at that address, and when they arrived to execute a search warrant of the residence they observed a Cuban male dart inside the house. Lopez barricaded himself in the back bedroom with the narcotics and engaged in a shoot-out with police. Lopez was in possession of the crack cocaine at the time of the shooting, and there was testimony from the neighbors that he had been involved in selling narcotics.
Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found beyond a reasonable doubt that Lopez was aiding and abetting defendant in one or more of the following violations of the Controlled Dangerous Substances Act: distribution of crack cocaine, possession of crack cocaine or possession with the intent to distribute. As an accomplice with Lopez in the underlying felony, defendant is liable for Lopez's actions in killing Officer Thomas. The court of appeal erred in holding otherwise.
Regarding the second count of manslaughter, there was not sufficient evidence to conclude that defendant, or anyone acting in concert with defendant, was *317 responsible for the death of Lopez. The evidence clearly established that Detective Toye shot Lopez in self-defense. Defendant is not criminally liable for the lethal act of a third party committed in an effort to resist his felony.
Accordingly, we will affirm defendant's conviction and sentence for Officer Thomas, and reverse his conviction and sentence for Jessie Lopez.
DECREE
For the foregoing reasons, we reverse the court of appeal's judgment reversing defendant's conviction and sentence for Officer Thomas, and affirm his conviction and sentence for that offense. We affirm the court of appeal's judgment reversing defendant's conviction and sentence for Jessie Lopez.
ON REHEARING
PER CURIAM.
We amend our original decree to set aside the affirmance of defendant's conviction and sentence for the manslaughter of Officer Thomas and remand to the court of appeal to consider defendant's assignments of error not reached by the court of appeal. Otherwise, defendant's application for rehearing is denied.
NOTES
[*] Knoll, J., not on panel. Rule IV, Part 2, § 3.
[1] 97-2401 (La.App. 4th Cir.05/26/99); 735 So.2d 935.
[2] 99-1849 (La.12/17/99); 751 So.2d 865.
[3] See State v. Jones, 859 P.2d 514, 515 (Okla. Crim.App.1993); State v. Bonner, 330 N.C. 536, 411 S.E.2d 598, 599 (1992); Minnesota v. Branson, 487 N.W.2d 880, 885 (Minn. 1992); State v. Severs, 759 S.W.2d 935, 938 (Tenn.Crim.App.1988); Campbell v. State, 293 Md. 438, 444 A.2d 1034, 1042 (1982); State v. Crane, 247 Ga. 779, 279 S.E.2d 695, 696 (1981); Weick v. State, 420 A.2d 159, 161-62 (Del.1980); Jackson v. State, 92 N.M. 461, 589 P.2d 1052, 1052-53 (1979); State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 875 (1977); Alvarez v. Denver, 186 Colo. 37, 525 P.2d 1131, 1132 (1974); Clark County Sheriff v. Hicks, 89 Nev. 78, 506 P.2d 766, 768 (1973); People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 134 (1965); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476, 482-83 (1958); Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 1086 (1905).
[4] See Palmer v. State, 704 N.E.2d 124, 126 (Ind.1999); State v. Lowery, 178 Ill.2d 462, 227 Ill.Dec. 491, 687 N.E.2d 973, 977 (1997); State v. Hernandez, 82 N.Y.2d 309, 604 N.Y.S.2d 524, 624 N.E.2d 661, 662, 664-665 (1993); State v. Oimen, 184 Wis.2d 423, 516 N.W.2d 399, 401 (1994); Mikenas v. State, 367 So.2d 606, 609 (Fla.1978).
[5] See, e.g., Hernandez, 604 N.Y.S.2d 524, 624 N.E.2d at 663-665 (applying proximate cause theory due to statutory language holding a person culpable when, during the commission of a felony, he or an accomplice "causes the death" of a person); Oimen, 516 N.W.2d at 404 (same); State v. Martin, 119 N.J. 2, 573 A.2d 1359, 1370-71 (1990) (noting that legislature intended to adopt the proximate cause theory when it deleted the requirement that the death occur "in furtherance of" the commission of a felony); Mikenas, 367 So.2d at 608-09 (applying proximate cause theory to statute defining felony murder as "when a person is killed in the perpetration of [any enumerated felony] by a person other than the person engaged in the perpetration of ... such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder ...").
| {
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606 F.Supp.2d 602 (2009)
HARTFORD FIRE INSURANCE COMPANY, Plaintiff,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant.
No. 5:07-CV-276-FL.
United States District Court, E.D. North Carolina, Western Division.
March 9, 2009.
*603 Patrick M. Anders, Edgar & Paul, Chapel Hill, NC, for Plaintiff.
John T. Honeycutt, Yates McLamb & Weyher, Raleigh, NC, for Defendant.
ORDER
LOUISE W. FLANAGAN, Chief Judge.
This matter is before the court on motion for summary judgment by defendant, (DE # 9), motion for partial summary judgment by plaintiff, (DE # 11), and the memorandum and recommendation ("M & R") filed by the United States Magistrate Judge. (DE # 18.) The M & R was filed on January 16, 2009. The time for filing objections to the M & R has now passed, with no objections filed by either party. In this posture, the issues raised are ripe for ruling.
This case was removed from the Superior Court of Wake County, North Carolina on July 19, 2007, on the basis of diversity jurisdiction. Plaintiff seeks a declaratory judgment pursuant to the North Carolina Declaratory Judgment Act that it is entitled to reimbursement from defendant for all or part of the sums it paid out in settlement of a case against CNC/Access, Inc. involving an automobile accident in which one of CNC/Access's patients was injured. Plaintiff insured CNC/Access, Inc. under a commercial general and automobile liability insurance policy. Defendant also insured under a health care facility medical professional liability policy. The instant cross-motions for summary judgment present a question of interpretation of insurance policy provisions under North Carolina law.
The court has thoroughly reviewed the thoughtful M & R entered by the magistrate judge in this case, and considered the issues presented therein. The court finds the magistrate judge correctly interpreted and applied North Carolina law to the instant cross-motions for summary judgment. Therefore, the court hereby ADOPTS the recommendation of magistrate judge as its own, and, for the reasons stated in the M & R, plaintiff's motion is DENIED, defendant's motion is GRANTED, and this matter is DISMISSED. The clerk of court is directed to close the file.
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, United States Magistrate Judge.
This case comes before the court on the motion for summary judgment by defendant *604 St. Paul Fire and Marine Insurance Company ("defendant") (DE # 9) and the motion for partial summary judgment by plaintiff Hartford Fire Insurance Company ("plaintiff") (DE # 11), pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motions were referred to the undersigned Magistrate Judge for review and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it will be recommended that defendant's motion be allowed and plaintiff's motion be denied.
BACKGROUND
I. PROCEDURAL HISTORY
On 26 June 2007, plaintiff filed this action in the Superior Court of Wake County, North Carolina. (Compl. (DE # 1-2)). It was removed to this court on 19 July 2007 based on the court's diversity jurisdiction, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. (See Notice of Removal (DE # 1)).[1]
The complaint seeks a declaratory judgment and money judgment for insurance proceeds paid by plaintiff to settle a motor vehicle accident lawsuit against its insured, CNC/Access, Inc. ("CNC"). (Compl. at 3 (CM/ECF page no.)). CNC is a provider of behavioral rehabilitation services, including high risk intervention services. (See Stipns. (DE # 8) at 4, 7-14).[2] The motor vehicle lawsuit, brought in the Superior Court of Cabarrus County, North Carolina, arose from an accident in which a CNC client, Tiffany Mazzullo ("Mazzullo"), was injured while riding in a pick-up truck being driven by a CNC employee, Judy Haywood ("Haywood"). (Stipns. at 1 ¶¶ 1, 2; Compl. ¶¶ 6, 10, 11; Am. Answer ¶¶ 6, 10, 11). At the time of the accident, CNC was insured by plaintiff under a commercial general and automobile liability insurance policy, (Stipns. at 2 ¶ 13; Compl. ¶ 8; Am. Answer ¶ 8). CNC was also then insured by a health care facility medical professional liability policy issued by defendant ("defendant's policy"). (Stipns. at 2 ¶ 12; Compl. ¶ 9; Am. Answer ¶ 8; Def.'s Policy (DE # 14-2 through 14-6)).[3] The complaint alleges that defendant's policy provided coverage for the injuries caused in the accident and thereby for the claims against CNC and Haywood in the motor vehicle accident lawsuit. (Compl. ¶¶ 9-17).
II. OVERVIEW OF MOTIONS
Defendant's motion for summary judgment seeks a determination that its policy did not provide coverage with respect to the underlying lawsuit and defendant therefore owes plaintiff nothing in this action or, alternatively, that if defendant's policy did provide coverage, such coverage was pro rata with plaintiff's coverage and therefore defendant owes plaintiff at most only a pro rata share of the settlement funds paid by plaintiff. With its motion, *605 defendant filed a supporting memorandum (DE # 10), plaintiff's responses to requests for admissions (DE # 12), a copy of defendant's policy, and an authenticating affidavit for the policy (DE # 14). Plaintiff did not file a separate memorandum responding to defendant's motion.
Plaintiff's motion seeks a determination that defendant's policy did provide CNC and Haywood coverage for the accident at issue. With its motion, plaintiff filed a supporting memorandum (DE # 13), an affidavit by Haywood (DE # 11-2), a copy of its commercial general and automobile liability insurance policy applicable to the accident at issue (DE # 11-4), and an authenticating affidavit for the policy (DE # 11-3). Defendant filed a memorandum in response to plaintiff's motion (DE # 15). Both parties filed jointly a set of 15 separately numbered stipulations to which is attached a CNC job description for the position of high risk intervention worker ("HRI"), Haywood's resume, and medical records for Mazzullo.
III. UNDISPUTED FACTS
At all times relevant to this matter, Haywood was employed by CNC as an HRI. (Stipns. at 1 ¶ 3). As provided by the CNC job description for the HRI position, the purpose of the HRI is to "to provide one-on-one treatment services to designated mental health consumers." (Id. at 1 ¶ 4 & p. 4). The services provided by the HRI "will be specified through each consumer's individualized treatment/service plan, which is designed and overseen by a Qualified Mental Health Professional." (Id. at 4). The qualifications for the HRI position include being privileged and credentialed to provide HRI services and having a four-year degree in either human services or in a non-related field with two years of post-graduate experience in the field. (Id.). The duties and responsibilities of an HRI are specified as follows:
1. Providing one-on-one direct service delivery to assigned mental health consumers.
2. Implementing designated goals and interventions identified on each assigned consumer's treatment/service plan,
3. Documenting all service delivery in the appropriate format and in accordance with federal, state and local governing agencies.
4. Reporting any significant observations to immediate supervisor and/or any other designated or mandated personnel.
5. Responsible for attending and completing all mandatory training and updates within established time frames.
6. Submitting semi-monthly timesheets and supporting documentation on the first and sixteenth of each month by 9:00 a.m.
7. Maintaining all certifications applicable to this position and insuring no lapse.
8. Other duties as assigned by supervisor.
(Id.).
Haywood was assigned to provide HRI services to Mazzullo, a minor. (Id. at 1 ¶¶ 1, 7). These services were provided to address certain mental and physical conditions of Mazzullo[4] and included involving Mazzullo in afternoon activities, such as trips to parks, restaurants, libraries, swimming pools, and other community functions. (Id. at 2 ¶ 9). Because Mazzullo's mother was unable to provide transportation *606 for these activities, Haywood drove Mazzullo to and from these activities as well as to and from therapy and other treatment appointments. (Id. at 2 ¶ 10).
On 28 July 2000, while Haywood was driving Mazzullo either to or from some of these activities (i.e., either a visit to a park, or a visit to a park and a library), Haywood negligently caused an accident when she pulled into the path of another vehicle at an intersection. (Id. at 1 ¶ 2, 2 ¶ 11; Haywood Aff. ¶¶ 7, 9).[5] As indicated above, at the time of the accident, CNC was insured by defendant under a health care facility medical professional liability policy and by plaintiff under a commercial general and automobile liability insurance policy.
DISCUSSION
I. STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, discovery on file, affidavits, and other evidence submitted show that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Haavistola v. Comty Fire Co. of Rising Sun, Inc., 6 F.3d 211, 214 (4th Cir.1993). "In other words, summary judgment should be granted in those cases in which it is perfectly clear that no genuine issue of material fact remains unresolved and inquiry into the facts is unnecessary to clarify the application of the law." Id. (citing McKinney v. Board of Trustees, 955 F.2d 924, 928 (4th Cir.1992)). Further, all facts and inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.1996). Summary judgment may be "especially appropriate" where, as in the instant case, the court is "faced ... with a motion and countermotion for summary judgment, wherein all parties [have] admitted to undisputed facts and [seek] a declaration of the law." Brinson v. Brinson, 334 F.2d 155, 160-61 (4th Cir.1964).
II. CHOICE OF LAW
Before turning to the merits of the parties' motions, an issue to be addressed is which jurisdiction's substantive law governs defendant's policy. This choice of law issue arguably arises because both defendant and CNC arc corporations foreign to North Carolina. (See Compl. ¶¶ 2, 3; Am. Ans. ¶¶ 2, 3; Def.'s Policy (DE # 14-2) at 14). The parties appear to agree, and the court finds, that the substantive law applicable to defendant's policy is the law of North Carolina.
Pursuant to N.C. Gen.Stat. § 58-3-1, "[a]ll contracts of insurance on property, lives, or interests in this State shall be deemed to be made therein, and all contracts of insurance the applications for which are taken within the Slate shall be deemed to have been made within this State and are subject to the laws thereof." N.C. Gen.Stat. § 58-3-1 (2008). "[B]ecause of constitutional concerns, application of this provision has been limited to situations where there is a `close connection' *607 between North Carolina and the interests insured by the policy." Continental Cas. Co. v. Physicians Weight Loss Ctrs. of Am., Inc., 61 Fed.Appx. 841, 844-45 (4th Cir.2003) (citing Collins & Aikman Corp. v. Hartford Acc. & Indem. Co., 335 N.C. 91, 95, 436 S.E.2d 243, 245 (1993)).
In the instant case, defendant's policy insures the "interests" of CNC in its provision of services within North Carolina. Defendant's policy therefore falls within the plain terms of N.C. Gen.Stat. § 58-3-1. In addition, the requisite close connection between the insured's interests and North Carolina exists. The CNC office at issue operates in North Carolina, as do 17 of the 18 other CNC business locations listed in the policy (See Def.'s Policy at (DE # 14-6) at 5-6). In addition, the policy was sold by an insurance broker in North Carolina. (Id. (DE # 14-2) at 1). Accordingly, the court concludes that the law of North Carolina governs defendant's policy.
III. COVERAGE OF INJURIES FROM ACCIDENT UNDER DFENDANT'S POLICY
The central issue presented by the parties' motions is whether defendant's policy provided coverage for the injuries caused by Haywood in the motor vehicle accident. Defendant contends that coverage did not exist on the principal grounds that the policy clearly does not encompass injury resulting from the provision of driving services. Plaintiff argues that coverage does exist because the policy is ambiguous as to whether the driving services were covered and the policy must be construed broadly to include them. The parties agree, and the court finds, that the facts material to the coverage issue presented are not in dispute and that resolution of this issue by summary judgment is appropriate.[6]
A. Standards for Construction of Insurance Contracts
The principles governing construction of insurance contracts are well established under North Carolina law. "The construction and application of insurance policies to undisputed facts is a question of law for the court." Kephart by Tutwiler v. Pendergraph, 131 N.C.App. 559, 564, 507 S.E.2d 915, 919 (1998). The objective of construction is to determine the coverage intended by the parties when the policy was issued. Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970). "If policy language is clear and unambiguous, the court's sole duty is to `determine the legal effect of the language used and to enforce the agreement as written.'" Pendergraph, 131 N.C.App. at 564, 507 S.E.2d at 919 (quoting Cone Mills Corp. v. Allstate Ins. Co., 114 N.C.App. 684, 687, 443 S.E.2d 357, 359 (1994)). However, where the policy language is ambiguous, such ambiguities must be resolved in favor of the insured. Mastrom, Inc. v. Continental Cas. Co., 78 N.C.App. 483, 484, 337 S.E.2d 162, 163 (1985); see also First Nat. Bank of Anson County v. Nationwide Ins. Co., 303 N.C. 203, 216, 278 S.E.2d 507, 515 (1981) (principle that policy should be construed in favor of coverage applies only when there is an ambiguity). "An ambiguity exists where, in the opinion of the court, the language of the policy is fairly and reasonably susceptible to either of the constructions asserted by the parties." Maddox v. Colonial Life and Acc. Ins. Co., 303 N.C. 648, 650, 280 S.E.2d 907, 908 (1981).
*608 In interpreting an insurance policy, a nontechnical term for which no definition is provided is to be given its ordinary meaning unless the context in which the term is used in the policy requires that it be given a different meaning. United Services Auto. Assn. v. Gambino, 114 N.C.App. 701, 705, 443 S.E.2d 368, 371 (1994). "In addition, an insurance contract is to be construed as a reasonable person in the position of the insured would have understood it." Id., 114 N.C.App. at 706, 443 S.E.2d at 371.
B. Court's Construction of Defendant's Policy
Applying these principles to defendant's policy, the court finds that it is unambiguous with respect to coverage of the injuries caused in the motor vehicle accident and that the policy does not cover those injuries. Defendant's policy states clearly that it covers only damages that result from "healthcare professional services." The main provision stating this principle reads in relevant part:
Medical professional injury liability. We'll pay amounts any protected person is legally required to pay as damages, including damages assumed under contract. The damages must be for medical professional injury that results from health care professional services provided, or which should have been provided....
(Def.'s Policy (DE # 14-6) at 3) (emphasis in italics added). "Medical professional injury" is similarly, if not redundantly, defined in terms of injury resulting from "health care professional services." The definition reads:
Medical professional injury means injury, including death, to others that results from health care professional services provided, or which should have been provided, by or for a protected person.
(Id. at 3 (emphasis added)).
The policy defines "health care professional services" to mean six sets of specified activities:
Health care professional services means only the following:
Medical, surgical, dental, x-ray, nursing, mental or other similar health care professional services or treatments, and food or beverages given with those services or treatments.
Dispensing of drugs or medical or dental supplies and appliances.
Performing post mortem procedures, including autopsies or harvesting or organs.
Evaluating, or responding to an evaluation of, the professional qualifications or clinical performance of any provider of health care professional services, when done by or for any of your formal review boards or committees.
Communicating, or failing to communicate, to any of your formal review boards or committees, information that relates to their covered activities.
Carrying out, or failing to carry out, a decision or directive of any of your formal review boards or committees that relates to their covered out activities.
(Id. at 3-4).
The court finds that this definition unambiguously does not include the driving services at issue. None of these provisions in the definition expressly mentions driving services. At the same time, other services provided in connection with health care services are expressly included, namely, "food or beverages given with ... [certain health care professional] services or treatments." (Id. at 3 (first bulleted provision above)).[7] Driving could have been mentioned expressly had the parties *609 intended to include it, See, e.g., Dixie Fire Ins. Co. v. Am. Bonding Co., 162 N.C. 384, 78 S.E. 430, 433 (1913) (applying the canon of construction that the expression of one thing implies the exclusion of another in interpreting language of an indemnity bond); Hidalgo v. Wilson Certified Exp., Inc., 676 So.2d 114, 119 (La.Ct.App.1996) (holding that the legislature did not intend to include negligence in driving an ambulance within the scope of a statute limiting medical malpractice liability because the statute specifically included certain activities commonly associated with ambulances, such as loading and unloading of patients, but not the transporting of patients). The court does not believe that any of these provisions can otherwise reasonably be construed to include the driving services at issue.
C. Flaws in Plaintiffs's Construction of Defendant's Policy
Plaintiff disagrees that the policy language is unambiguous. It contends that the category "mental or other similar health care professional services," which appears in the first bulleted provision above, is itself undefined and can reasonably be construed to include the driving services. (Id. at 3). Plaintiff argues that the policy is therefore ambiguous regarding coverage of the injuries caused by Haywood in the accident and that it should be construed liberally in favor of coverage. The principal rationale underlying plaintiff's argument is that the trip during which the accident occurred was for therapeutic purposes, namely, an outing for Mazzullo pursuant to her treatment/service plan, and that the driving, which was essential to the trip, can reasonably be deemed part of the health care services being provided.
The court has carefully considered plaintiffs contention, but finds it meritless for a variety of reasons. The policy is clear that the driving would not be covered simply because it occurred while other covered health care services were being provided. As discussed, the policy covers injuries only if they arc the result of covered activities. Because the injuries in the accident resulted from Haywood's driving, the driving itself must be a health care professional service for coverage to exist.
The North Carolina Court of Appeals addressed this issue of the connection between covered services and damages in Mastrom, Inc. v. Continental Cas. Co., 78 N.C.App. 483, 337 S.E.2d 162, which involved an accounting malpractice policy. The policy covered damages "arising from" covered services. 78 N.C.App. at 486, 337 S.E.2d at 163. The court held that this language required a real causal connection between the covered services and the damages. 78 N.C.App. at 487, 337 S.E.2d at 164. Here, as discussed, defendant's policy requires that the damages "result" from the covered services. This language suggests the need for at least as strong a causal connection as in Mastrom between the covered services and the damages.[8]
In addition, contrary to plaintiff's contention, the category of "mental or other similar health care professional services" cannot reasonably be construed to include the driving at issue. This category includes two types of services: "mental health care professional services" and *610 "other similar health care professional services."
The driving at issue cannot reasonably be deemed to be a "mental health care professional service," in part, because it lacked the character of either a "mental" service or a "health care" service. Even using the definition of "mental health care" proposed by plaintiff, the act of driving cannot reasonably be considered "an effort to maintain or restore emotional health" to Mazzullo. (Plf.'s Mem. at 8 (CM/ECF page no.)). Rather, the driving involved simply transporting Mazzullo from one location to another and was not itself part of Mazzullo's treatment. It is conceivable that under some circumstances driving could comprise a mental health care service, say, as therapy for someone with a fear of driving or riding in a car. There is, however, no evidence that such a circumstance exists here.
The driving also cannot reasonably be deemed an "other similar health care professional service," in part, because, as discussed, it was not a "health service." To assess whether the driving could reasonably be deemed "similar" to the health care professional services referenced, it is necessary to review what those services are. Again, the relevant provision reads;
Medical, surgical, dental, x-ray, nursing, mental or other similar health care professional services or treatments, and food or beverages given with those services or treatments.
(Id. at 3) (emphasis added). The driving here is obviously not similar in any meaningful sense to the other services listed. Specifically, taking a person from one location to another is simply not like providing a person medical, surgical, dental, nursing, mental, or x-ray services.
As this analysis suggests, the driving at issue cannot reasonably be said to be a "professional service," as required to come with in the definition of "health care professional service," including that term as it is used in "mental health care professional services" and "other similar health care professional services." For example, the driving was of a routine, everyday nature, tantamount to running an errand across town. It did not entail such circumstances as traveling on a test track at high speeds or on rough, off-road terrain.[9]
This interpretation finds support in the case law. Courts are often required to determine the scope of the term "professional services" where a disputed act or service is provided in conjunction with or has some other connection with the provision of other professional services. In addressing this issue, North Carolina courts, along with numerous other courts, have adopted the definition of "professional services" set out in Marx v. Hartford Acc. & Indem. Co., 183 Neb. 12, 157 N.W.2d 870 (1968). See, e.g., Sturgill v. Ashe Memorial Hosp., Inc., 186 N.C.App. 624, 628, 652 S.E.2d 302, 305 (2007) (adopting Marx definition in determining whether plaintiff's claim was for medical malpractice such that the complaint must include the expert certification required by N.C. Rule of Civil Procedure 9(j)); Duke Univ. v. St. Paul Fire and Marine Ins. Co., 96 N.C.App. 635, 639, 386 S.E.2d 762, 765 (adopting Marx definition in deciding scope of professional liability exclusion provision in a general liability insurance policy), rev. denied, 326 N.C. 595, 393 S.E.2d 876 (1990).[10]
*611 In Marx, the court held that the term "professional," as used in the medical professional liability policy before it, "means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities" and that a professional service is one that involves "specialized knowledge, labor, or skill" and "the use or application of special learning or attainments." 183 Neb. at 13-14, 157 N.W.2d at 871-72. Such skills are "predominantly mental or intellectual, rather than physical or manual" 183 Neb. at 14, 157 N.W.2d at 872. The court further held that "[i]n determining whether a particular act is of a professional nature or a `professional service' we must look not to the title or character of the party performing the act, but to the act itself." Id.
In Marx, the court addressed whether the medical professional liability policy covered fire damage to a medical office building caused when an employee technician mistakenly poured benzene into a hot water sterilizer instead of water. 183 Neb. at 14, 157 N.W.2d at 872. Applying the definition above, the court concluded that "[t]he boiling of water for sterilization purposes alone was not an act requiring any professional knowledge or training." Id. The court therefore held that no coverage existed.
In the instant case, the driving services provided by Haywood required no type of specialized health care or other specialized skills and could have been performed by any person licensed to drive a passenger car or truck, including Mazzullo's mother had she been available to do so on the day in question. Regardless of whether Haywood was providing other mental heath services to Mazzullo as an HRI, it is the "act itself" that must be considered and not Haywood's "title or character." Marx, 183 Neb. at 14, 157 N.W.2d at 872. Consequently, the driving services are not "professional services." See Hidalgo, 676 So.2d 114, 119 ("Driving is not conduct related to health care or professional services rendered or which should have been rendered, and therefore the typical medical malpractice insurance policy would not provide coverage,"); see also Gulf Ins. Co. v. Gold Cross Ambulance Serv. Co., 327 F.Supp. 149, 154-55 (D.C.Okl.1971) (holding that "[a]mbulance service is primarily manual .... While it may require skill on the part of those who render the service, it does not require knowledge of an advanced type in a field of learning customarily acquired after a long period of specialized intellectual instruction."); Ohio Govt. Risk Mgt. Plan v. Cty. Risk Sharing Auth., Inc., 130 Ohio App.3d 174, 183, 719 N.E.2d 992, 998 (1998) (holding that a governmental medical services professional liability endorsement did not provide coverage for injuries suffered from an automobile accident involving an ambulance because the emergency medical technician ("EMT") driving the ambulance "was not providing professional medical services to the [injured parties] when [the EMT] was involved *612 in the accident that caused their injuries.").[11]
The court's conclusion is further supported by the application of the Marx definition by North Carolina courts in other cases involving health care professional services. In Taylor v. Vencor, Inc., 136 N.C.App. 528, 530, 525 S.E.2d 201, 203 (2000), the court applied the Marx definition in concluding that the failure of a nursing home to supervise a resident whose nightgown caught on fire while she was smoking constituted a claim for ordinary negligence, not for medical malpractice. The court reasoned that "[p]reventing a patient from dropping a match or a lighted cigarette upon themselves, while in a designated smoking room, does not involve matters of medical science." Id. In Lewis v. Setty, 130 N.C.App. 606, 608, 503 S.E.2d 673, 674 (1998), the court held that the failure of a physician to lower an examining table to transfer a patient back into a wheelchair was not an activity that fell within the definition of "professional medical services" such that patient's claim was one for medical malpractice. The North Carolina courts have also employed the same analysis in determining whether certain services fall within the privilege licensing statute. See Smith v. Keator, 21 N.C.App. 102, 105, 203 S.E.2d 411, 415 (1974) (applying the Marx definition in determining that masseurs were not practicing the "professional art of healing" for the purposes of the privilege license statute). Thus, North Carolina courts have consistently excluded acts from the scope of health care "professional services" where they did not involve medical judgment or skill even when such acts occurred in connection with the provision of health care professional services. See also Sturgill, 186 N.C.App. at 628, 652 S.E.2d at 305 (applying Marx definition in determining that hospital's failure to properly restrain patient was a claim for medical malpractice because the "decision to apply restraints is a medical decision requiring clinical judgment and intellectual skill.").
In a similar vein outside of the health care context, the North Carolina Court of Appeals has concluded that not all services provided by a professional automatically fall within the scope of a professional services insurance policy where they do not otherwise meet the express definition of the services covered. In the Mastrom case previously mentioned, the court held that an accounting firm's sale of securities to clients unrelated to taxes was not covered under the firm's accountant professional liability policy because the sales did not involve the performance of professional services in the capacity of an accountant. 78 N.C.App. at 487, 337 S.E.2d at 164. The firm had been sued by a number of the clients to whom the firm had sold the securities, the firm's accounting malpractice carrier declined coverage, the firm's excess carrier took over the firm's defense and settled the litigation, and the firm and its excess carrier brought a suit against the malpractice carrier, which the trial court dismissed. 78 N.C.App. at 483-84, 337 S.E.2d at 163. The Court of Appeals affirmed the dismissal. 78 N.C.App. at 488, 337 S.E.2d at 165.
While acknowledging that the firm provided a wide range of services, the appellate court also recognized that the policy covered only damages "arising out of the firm's accounting services. 78 N.C.App. at *613 486, 337 S.E.2d at 163. The court rejected the argument of the firm and its excess carrier, the plaintiffs, that the sale of the securities arose from accounting services because the firm had used information obtained from clients in the provision of accounting services to identify potential buyers, 78 N.C.App. at 486, 337 S.E.2d at 164. The court reasoned that "[u]nder the construction urged by plaintiffs, defendant [malpractice carrier] could be required to provide general liability coverage for virtually any client claim as long as the client's first contacts with [the firm] were [for accounting] services." 78 N.C.App. at 487, 337 S.E.2d at 164.
As in Mastrom, the fact that the driving services here were provided in connection with health care professional services does not give the driving services the character of health care professional services. Adoption of such a constructionthat services provided with health care professional services are by that fact themselves health care professional serviceswould effectively transform defendant's policy from a professional liability policy into a general liability policy. As the Mastrom court said of such an interpretation of the accounting malpractice policy at issue there, "[t]hat result would be absurd and untenable." Id.
For this and the other reasons discussed, the court concludes that the definition of the term "health care professional services" is unambiguous on the facts presented and does not include the driving services at issue. See Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 505-06. 246 S.E.2d 773, 777 (1978) ("Where a policy defines a term, that definition is to be used."). The injuries caused by Haywood in the accident therefore did not result from "health care professional services" and the policy does not provide coverage for those injuries as a matter of law. In light of this conclusion, the court need not address the issue raised by defendant in its motion of the extent to which any coverage its policy provided would be pro rata with plaintiffs policy.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that defendant's motion for summary judgment be ALLOWED, plaintiff's motion for partial summary judgment be DENIED, and judgment be entered DISMISSING this case with prejudice, pursuant to Fed.R.Civ.P. 56(c).
The Clerk shall send copies of this Memorandum and Recommendation to counsel for the respective parties, who have ten business days, or such other period as the presiding District Judge specifies, to file written objections. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge.
This the 16th day of January, 2009.
NOTES
[1] Although, as discussed, the events underlying this action occurred outside this district, venue is proper in this court under 28 U.S.C. § 1441(a) because it is the court to which the case was properly removed. E.g., Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 555-56 (E.D.N.C.2005) (Flanagan, J.).
[2] In citations to these stipulations, which, as discussed below, the parties tiled with their other submissions, the page references are to the page numbers assigned by the CM/ECF electronic docketing system.
[3] Defendant's policy provides several different types of coverage. The principal section of the policy relating to the type of coverage at issue in this case, health care facility medical professional liability coverage, is located at DE # 14-6. In citations to defendant's policy, the page references are to the page numbers assigned by the CM/ECF electronic docketing system.
[4] The conditions listed in Mazzullo's treatment plan include child victim of sexual abuse, oppositional defiant disorder, adjustment disorder, and right side paralysis secondary to head injury. (Stipns. at 7).
[5] Although the cited stipulations state that the accident occurred while Haywood and Mazzullo were returning from a visit to a library and a park, the cited portion of the affidavit of Haywood stales that they were on their way to a park. The memoranda reflect the discrepancy. (Plf.'s Mem. at 3 (CM/ECF page no.) (travel was "to or from a visit to a park")); Def.'s Support. Mem. at 2 (travel was from a visit to a library and a park); Def.'s Resp. Mem. at 4, 5 (travel was to a visit to a park). Whether Haywood and Mazzullo were returning from or going to the outing and the precise nature of the outing are not material. The pertinent material fact, on which the panics arc in agreement, is that the travel was for an "activity [which] was included within the scope of Haywood's HRI services to Mazzullo." (Stipns. at 2 ¶ 11).
[6] The parties appear to agree that, aside from the issue discussed herein, defendant's policy would provide at least pro rata coverage for the injuries caused by Haywood in the accident (e.g., Haywood was covered as a CNC employee). The court need not address these other aspects of coverage in light of its resolution of the central issue before it.
[7] The court also notes that CNC had a separate automobile liability policy with plaintiff which provides further evidence that CNC did not intend to rely on the professional liability policy at issue to provide coverage for automobile accidents.
[8] Although at one point plaintiff complains that it is inappropriate to treat driving as a distinct activity, the various provisions in the definition of "health care professional services" and case law discussed herein, including Mastrom, do distinguish among the various specific services being provided.
[9] The court also notes plaintiff's argument that the policy covers driving services because it fails to expressly exclude such services from coverage. However, because the court has found that the provisions setting out the insuring obligation do not include the driving services at issue, the absence of an exclusion does not affect coverage of them.
[10] Plaintiff argues that because the Duke case involved an ambiguous policy exclusion that had 10 be interpreted narrowly, Duke, 96 N.C.App. at 639, 386 S.E.2d at 764, the definition of professional services used in that case cannot appropriately be employed here, where a provision conferring coverage is at issue that purportedly should be broadly construed. The court disagrees. Among other reasons, the Marx definition adopted by the Duke court was itself developed in a case involving interpretation of an unambiguous provision which sets out the insuring obligation, as here, not an ambiguous exclusion. In addition, as the discussion herein indicates, the courts in North Carolina and other jurisdictions have employed the principles in Marx in an array of settings. The Marx definition is not a narrow standard confined specifically to use with policy exclusions. Moreover, the court does not believe it is a close question whether the driving at issue qualifies as a professional service under the Marx test.
[11] The court notes plaintiff's argument that "surely an ambulance driver would be covered under this policy" and that "to exclude an ambulance driver from coverage for health care services would be a nonsensical result." (Pl.'s Mem. at 10(CM/ECF page no.)). Plaintiff cites no authorities for this position, and the cases cited above would indicate to the contrary.
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773 F.2d 1237
*Phillipsv.Mutual of Omaha Ins.
85-7163
United States Court of Appeals,Eleventh Circuit.
9/5/85
1
N.D.Ala.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 11th Cir.R. 23.
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Case: 18-40471 Document: 00514906737 Page: 1 Date Filed: 04/08/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-40471 April 8, 2019
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCUS PIZANA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:17-CR-1-1
Before HIGGINSON, COSTA, and HO, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Marcus Pizana has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Pizana has filed a response. The record is not sufficiently developed to allow
us to make a fair evaluation of Pizana’s claims of ineffective assistance of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-40471 Document: 00514906737 Page: 2 Date Filed: 04/08/2019
No. 18-40471
counsel; we therefore decline to consider the claims without prejudice to
collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Pizana’s response. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2. Pizana’s pro se motion for leave to supplement counsel’s
Anders brief, which is construed as a motion to file an untimely pro se response,
is GRANTED. Pizana’s pro se motions to strike counsel’s Anders brief, for
leave to proceed pro se, and for an extension of time to file a pro se brief are
DENIED.
2
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA LUCIA SIERRA, :
:
Plaintiff, : Civil Action No.: 16-1804 (RC)
:
v. : Re Document No.: 4
:
1
CARLA HAYDEN, in her official capacity as :
Librarian of Congress, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S PARTIAL MOTION TO DISMISS
I. INTRODUCTION
Defendant Carla Hayden, in her official capacity as Librarian of Congress, moves to
dismiss certain claims of discriminatory and retaliatory non-promotion by Plaintiff Martha Lucia
Sierra, a Library of Congress employee, that were not timely raised to the Library of Congress’s
Equal Employment Opportunity Complaints Office. Ms. Sierra argues that, although she did not
bring her claims within the prescribed time, the delay was justified for a variety of reasons. First,
she argues that she adhered to the purpose and spirit of the regulations, because she gave the
Library of Congress notice of her claims and an opportunity to investigate them. Second, she
argues that, by investigating and ruling on certain claims, the Library of Congress has waived its
ability to argue that Ms. Sierra did not timely raise her claims. Third, with respect to claims
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Carla Hayden
as defendant.
administratively raised after filing the complaint in this case, Ms. Sierra argues that they are part
of an ongoing pattern of discrimination and retaliation that continues to this day.
Ms. Sierra’s arguments come up short. Adhering to the “purpose” of required regulations
cannot excuse failure to exhaust in accordance with the regulations’ text. And, although in
certain circumstances a defendant can waive its exhaustion defense by raising it in court after
disregarding it in the administrative context, Ms. Sierra fails to show that the Library of
Congress ignored the timing deficiencies of her administrative complaint. In fact, the Library’s
decision on her complaint, which Ms. Sierra attaches as an exhibit in her opposition, shows just
the opposite. Finally, Ms. Sierra’s theory of ongoing discrimination has previously been rejected
by the Supreme Court, and thus does not excuse her failure to administratively raise certain
claims until after filing the instant lawsuit. Taken together, the Court dismisses claims related to
the allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012 and
from 2014 to 2016.
II. REGULATORY BACKGROUND
Under Title VII of the Civil Rights Act of 1964, “[a]ll personnel actions affecting
employees or applicants for employment . . . [in] the Library of Congress shall be made free
from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16. However, before one can file a Title VII lawsuit in a federal district court, she must
seek relief from the agency that allegedly discriminated against her. Brown v. GSA, 425 U.S.
820, 832 (1976). The administrative procedure that one must follow to seek relief from the
Library of Congress (“LOC”) is different from most federal agencies. See 29 C.F.R.
§ 1614.103(d)(3). Title VII charges the Librarian of Congress with exercising Equal
Employment Opportunity Commission (“EEOC”) authority with respect to the LOC. See 42
2
U.S.C. § 2000e-16(b). The Librarian of Congress has done so in the form of LOC regulations,
see LCR 2010-3.1 § 1, several of which Defendant reproduces as an exhibit. See ECF No. 4-3.2
Under the LOC’s regulations, “[a] staff member . . . who believes that []she has been, or
is being, discriminated against . . . shall notify and consult with a Counselor not later than 20
workdays after the date of the alleged discriminatory matter.” LCR 2010-3.1 § 4(A). This time
limit may be extended through a formal request, but, with few exceptions, otherwise must be
complied with before a plaintiff may file a federal lawsuit. See id. § 4(B); see also Nichols v.
Billington, 402 F. Supp. 2d 48, 69 (D.D.C. 2005), aff’d, 2006 WL 3018044 (D.C. Cir. Mar. 7,
2006). Counselors work in the LOC’s Equal Employment Opportunity Complaints Office
(“EEOCO”), which is headed by the EEOCO Chief and largely run by the EEOCO Assistant
Chief. See LCR 2010-3.1 § 3. The EEOCO Chief operates under the general guidance of the
associate Librarian for Management. Id. at § 3(A). The EEOCO is charged with providing
impartial counseling, and library staff are instructed to permit employees to contact counselors.
See id. §§ 2(A), 3(A).
III. FACTUAL BACKGROUND
Because Defendant moves to dismiss solely on failure-to-exhaust grounds, see generally
Def.’s Partial Mot. Dismiss (“Def.’s Mot. Dismiss”), ECF No. 4, the Court’s description of the
facts of the case is largely confined to the timing of Plaintiff’s administrative complaints vis a vis
the alleged discrimination. Martha Lucia Sierra has been an employee of the LOC for over
twenty years. Compl. ¶ 7, ECF No. 1. She alleges that she has been discriminated and retaliated
against because of her race, sex, and national origin. Compl. ¶ 1. Ms. Sierra specifically alleges
2
Because the parties did not label their exhibits, the Court refers to them by their ECF
numbers.
3
that her supervisors, Karen Lloyd and Dianne Houghton, discriminatorily refused to promote her
several times from 2008 through 2015, retaliatorily refused to promote her after she filed an
administrative complaint, and engaged in other discriminatory actions. See Compl. ¶¶ 12, 25–
28. Ms. Sierra alleges that she was publicly mocked by Ms. Lloyd, starting as early as 2009,
because English was not her first language. See Compl. ¶¶ 16, 19. Ms. Lloyd also allegedly
called Ms. Sierra a “traitor” in 2010, because Ms. Sierra helped the American Embassy in
Mexico with its library program. Compl. ¶ 25(c). Although it is not clear when the specific
instances of non-promotion occurred during the course of the alleged timeframe of
discrimination, according to the complaint, “[i]n 2008 and continuing through 2015, Ms. Lloyd
refused to approve a detail assignment for Ms. Sierra . . . [which] has adversely [affected] her
professional development.” Compl. ¶ 25(a). The Complaint does not set out, in detail, the
timing of discrete instances of discrimination and retaliation that allegedly occurred before she
filed her first administrative complaint. See generally Compl.
According to the complaint, Ms. Sierra filed her first formal “Allegation of
Discrimination” with the LOC on December 27, 2013, and then a formal complaint in the LOC’s
EEOC Office on April 9, 2014. Compl. ¶ 26. The parties attached these complaints to their
filings. See ECF No. 4-4, 6-2 (“December 2013 LOC Compl.”);3 ECF No. 6-3 (“April 2014
EEOC Compl.”). Ms. Sierra’s December 27, 2013 LOC complaint alleges that she was harassed,
mocked, and treated differently from other employees a month earlier on November 27, but also
suggests that the problems had been ongoing. See December 2013 LOC Compl. at 1, 2.4 Her
April 2014 EEOC complaint also references November 27, 2013, but states that Ms. Lloyd
3
Plaintiff and Defendant each append copies of the December 2013 Library of Congress
complaint.
4
The Court cites to the ECF page numbers.
4
“continually exhibited hostility toward [her]” since as early as 2008. See April 2014 EEOC
Compl. at 1, 3. The LOC accepted Ms. Sierra’s complaints and investigated them. Compl. ¶ 26.
Since filing her first administrative complaint, Ms. Sierra has asked for a promotion each
year but has not received one, allegedly in retaliation for filing administrative complaints. See
Compl. ¶¶ 28–29. Three days after she filed this case in federal court on September 9, 2016, see
Compl. at 14, she filed another LOC “Allegation of Discrimination.” See ECF No. 6-7
(“September 2016 LOC Compl.”). The 2016 complaint mentions only the allegedly retaliatory
failures-to-promote that occurred in 2015 and on August 4, 2016—not the one in 2014. See
September 2016 LOC Compl. at 2.
IV. LEGAL STANDARD
The rules for Rule 12(b)(6) motions apply to motions to dismiss for failure to exhaust
administrative remedies under Title VII. See Laughlin v. Holder, 923 F. Supp. 2d 204, 208
(D.D.C. 2013). To survive such a motion a complaint must contain sufficient factual allegations
that, if accepted as true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge[] their claims across
the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
“In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged
in the complaint, documents attached as exhibits or incorporated by reference in the complaint,
or documents upon which the plaintiff’s complaint necessarily relies even if the document is
produced not by the parties.” Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 133–34 (D.D.C.
2013) (internal citations and quotation marks omitted). “[A] document need not be mentioned
5
by name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.”
Strumsky v. Wash. Post Co., 842 F. Supp. 2d 215, 218 (D.D.C. 2012) (internal citation omitted).
Of course, courts may also take “judicial notice of facts on the public record . . . to avoid
unnecessary proceedings when an undisputed fact on the public record makes it clear that the
plaintiff does not state a claim upon which relief could be granted.” See Covad Commc’ns Co. v.
Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)).
Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec’y
of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d
433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an
affirmative defense, the defendant bears the burden of pleading and proving it.” (citing
Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving a failure to
exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the
record. See Bowden, 106 F.3d at 437.
V. ANALYSIS
Defendant moves to dismiss only Ms. Sierra’s claims of allegedly discriminatory and
retaliatory non-promotions that occurred from 2008 to 2012, and from 2014 to 2016, on the
grounds that Ms. Sierra failed to exhaust her administrative remedies. See Def.’s Mot. Dismiss
at 6. With respect to the former category of non-promotions, Ms. Sierra contends that she
adhered to the purpose of the LOC’s administrative procedure, and that even if she did not,
Defendant has waived her failure-to-exhaust defense, because the LOC accepted, investigated,
and decided her complaint. See Pl.’s Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”) at 7–11, ECF
6
No. 6. With respect to the non-promotions from 2014 to 2016, Ms. Sierra contends that those
specific instances of retaliation or discrimination were part of an ongoing pattern of
discrimination that the LOC was on notice of from her previous complaint. See Pl.’s Opp’n at 6–
7. Plaintiff also argues that any reliance on the administrative record requires the Court to
convert Defendant’s motion to dismiss into one for summary judgment. See Pl.’s Opp’n at 13.
Plaintiff’s arguments come up short. Adherence to the spirit of regulations is insufficient
when it comes to timely exhaustion of administrative remedies. And, although agencies can
waive the exhaustion defense when they decide a case on the merits without mentioning
timeliness, that was not the case here. With respect to the alleged non-promotions between 2014
and 2016, Plaintiff relies on a case that is no longer good law in this circuit. Although it is true
that the D.C. Circuit used to allow plaintiffs to raise claims related to those that were timely
exhausted, the Supreme Court rejected such an approach in National Railroad Passenger Corp.
v. Morgan. Finally, the Court need not convert Defendant’s motion into one for summary
judgment, because it may take judicial notice of the only administrative documents needed to
rule on this motion. Thus, the Court grants Defendant’s partial motion to dismiss, dismissing
Plaintiff’s complaint insofar as it seeks recovery for discrete non-promotions occurring from
2008 to 2012 and from 2014 to 2016.5
A. Conversion into a Motion for Summary Judgment
Plaintiff argues that the Court cannot look to the administrative record to resolve
Defendant’s motion, because to do so would require converting this motion into one for
5
The Court has not been asked to determine whether these non-promotions may be raised
within the context of Plaintiff’s hostile-work-environment claim. See Baird v. Gotbaum, 662
F.3d 1246, 1252–53 (D.C. Cir. 2011).
7
summary judgment. See Pl.’s Opp’n at 13.6 Because the Court need only look to documents to
which it can take judicial notice or that Plaintiff references in her complaint, conversion to a
motion for summary judgment is unnecessary.
In general, if the Court relies on materials other than those permitted to be considered on
a motion to dismiss—namely, the facts alleged in the complaint, documents attached as exhibits
or incorporated by reference, documents upon which the plaintiff’s complaint necessarily relies,
and facts of which the Court may take judicial notice—“it converts the motion to one for
summary judgment.” See Void v. Smoot, No. 16-0078, 2016 WL 6459554, at *5 (D.D.C. Oct.
31, 2016), appeal docketed, No. 16-5367 (D.C. Cir. Dec. 8, 2016). In the context of exhaustion,
courts are willing to rely upon administrative orders and administrative complaints without
converting the motion into one for summary judgment when the documents are “referred to in
the complaint, . . . are integral to [the plaintiff’s] exhaustion of administrative remedies, and are
public records subject to judicial notice.” See Laughlin, 923 F. Supp. 2d at 209. “[C]ourt[s] may
take judicial notice of matters of a general public nature . . . without converting the motion to
dismiss into one for summary judgment.” Koutny v. Martin, 530 F. Supp. 2d 84, 89 (D.D.C.
2007) (quoting Baker v. Henderson, 150 F. Supp. 2d 17, 19 n.1 (D.D.C. 2001)). “Thus, courts
have taken judicial notice of . . . parties’ administrative complaints when no party disputes their
6
In fact, Plaintiff, purporting to directly quote the court in Hansen v. Billington, 644 F.
Supp. 2d 97, 103 (D.D.C. 2009), asserts that “‘[r]eview of portions of the administrative record
that were not included in the Complaint requires that the Defendant’s Motion to Dismiss be
converted into a motion for summary judgment.’” Pl.’s Opp’n at 13. No such quotation in
Hansen exists. In fact, the Hansen court explicitly acknowledges that a court may consider facts
in “documents . . . incorporated by reference in the complaint, and matters about which the Court
may take judicial notice.” Hansen, 644 F. Supp. 2d at 102. That court then went on to state that
the Court may, under certain circumstances, convert a motion to dismiss into one for summary
judgment. See id. at 103. Never did the Court state that any review of the administrative record
always requires such conversion. See generally id. The Court assumes that Plaintiff’s
misstatement resulted from a misunderstanding.
8
authenticity.” Vasser v. McDonald, No. 14-cv-0185, 2016 WL 7480263, at *5 (D.D.C. Dec. 29,
2016) (citing Ahuja v. Detica Inc., 742 F. Supp. 2d 96, 103 (D.D.C. 2010); Redmon v. U.S.
Capitol Police, 80 F. Supp. 3d 79, 83 (D.D.C. 2015)). Even a court adopting a strict
interpretation of the outside materials that may be considered at the motion-to-dismiss stage
concluded that the court could consider the plaintiff’s EEOC complaint. See id.; Latson v.
Holder, 82 F. Supp. 3d 377, 386 (D.D.C. 2015) (“[T]he Court, in addition to the pleadings, may
only consider the plaintiff’s EEOC Complaint and Notice of Charge without converting the
motions to dismiss.” (internal citation, quotation marks, and alterations omitted)).
As explained below, the Court need only consider Plaintiff’s administrative complaints to
resolve Defendant’s partial motion to dismiss. Those complaints are subject to judicial notice
and, in the case of Ms. Sierra’s 2013 and 2014 complaints, referred to in the complaint. See
Compl. ¶ 26. Thus, the Court need not convert this motion into one for summary judgment.
Notably, even if the Court were to treat this motion as one for summary judgment, the
Court would likely still be able to resolve it. In responding to a motion for summary judgment, a
party may not simply rest on the assertions in its pleadings. Behrens v. Pelletier, 516 U.S. 299,
309 (1996). But it can, under Federal Rule of Civil Procedure 56(d) (“When Facts Are
Unavailable to the Nonmovant”), “show[] by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition.” It is appropriate for the Court to rule on
the merits of a converted motion for summary judgment when “(1) the evidence submitted is
sufficiently comprehensive to conclude that further discovery would be unnecessary; and (2) the
non-moving party has not been unfairly disadvantaged by being unable to access the sources of
proof necessary to create a genuine issue of material fact.” Ryan-White v. Blank, 922 F. Supp. 2d
19, 24 (D.D.C. 2013); see also Rosier v. Holder, 833 F. Supp. 2d 1, 5 (D.D.C. 2011) (treating a
9
motion as one for summary judgment because “both parties refer[red] to documents outside of
the complaint and there [was] nothing in the record . . . indicat[ing that] the parties did not have a
reasonable opportunity to present all pertinent material”).
Ms. Sierra has not complied with Rule 56(d) in two ways. First, she did not submit an
affidavit or declaration germane to the issue of unavailable facts. See generally Pl.’s Opp’n.
Second, even in her brief in support of her opposition she has not articulated what further
discovery would be necessary to oppose Defendant’s motion. Instead, she merely states that she
“believes that additional discovery is required to allow the parties to offer evidence in support of
their factual allegations and respectfully requests . . . additional time to . . . take discovery.” Pl.’s
Opp’n at 13. She suggests that the Court may need to consider “additional evidence from [Ms.]
Sierra and perhaps [Mr.] Page,” the LOC CFO. Pl.’s Opp’n at 13. But she offers no “specified
reasons” that discovery would shed light on the seemingly straightforward timing issues
necessary to resolving this motion to dismiss for failure to exhaust. See Pl.’s Opp’n. Any
evidence from Ms. Sierra could have been provided at this stage, or at the very least described in
greater detail in an affidavit, and Mr. Page, CFO of the LOC, has no apparent connection to the
timing of Ms. Sierra’s administrative complaints (beyond the tolling issue rejected below). Thus,
Plaintiff has not shown that she is entitled to discovery before resolution of the instant motion.
B. Non-Promotions Before 2012
Defendant moves to dismiss Ms. Sierra’s claims for discriminatory and retaliatory non-
promotions that occurred from 2008 through 2012, on the grounds that Ms. Sierra failed to
timely administratively file her complaints with the LOC. See Def.’s Mot. Dismiss at 6.
Plaintiff responds that (1) the purpose of the exhaustion doctrine has been satisfied, (2) the LOC
waived its non-exhaustion defense by accepting Plaintiff’s administrative complaints, and (3) the
10
twenty-workday time limit was tolled until Ms. Sierra knew the facts supporting her claim. The
Court addresses these three issues in turn.
1. Plaintiff Did Not Satisfy the LOC’s Administrative Timing Requirements
Ms. Sierra appears to concede that she did not adhere to the black letter of the library
regulations. See Pl.’s Opp’n at 10–11. As noted above, LOC regulations require an employee
who believes she has been discriminated against to consult with a counselor within twenty
workdays of “the date of the alleged discriminatory matter.” LCR 2010-3.1 § 4(A). Unlike with
other Title VII cases, where the regulations provide for more time when a plaintiff “did not know
and reasonably should not have known that the discriminatory matter or personnel action
occurred,” see 29 C.F.R. § 1614.105(a)(2), the LOC regulations only explicitly allow for
extensions upon prior request by the complainant. See LCR 2010-3.1 § 4(B).
Ms. Sierra thus contends only that she has adhered to the purpose of the library
regulations—namely, to give the agency sufficient notice of the alleged grievance—by filing the
administrative complaints when she did. See Pl.’s Opp’n at 7–11. Because completely missing a
deadline is not a mere “technical flaw” that can be excused so long as it provides sufficient
notice, the Court rejects Plaintiff’s argument.
Ms. Sierra is correct that, in many respects, “the basic demand on the complainant is that
the agency be given sufficient, even if technically flawed, notice of the grievance.” Bethel v.
Jefferson, 589 F.2d 631, 644 (D.C. Cir. 1978). This standard stems from the idea that the
administrative complaint procedure was meant to be maneuvered by laypersons, not lawyers.
See id. at 643. However, completely missing an administrative deadline is not a mere technical
flaw; timely administrative filing is, with rare exception, a prerequisite to filing suit. See
Achagzai v. Broad. Bd. of Governors, 170 F. Supp. 3d 164, 180 (D.D.C. 2016) (characterizing a
11
Title VII administrative filing deadline as a “cutoff”), reconsideration denied, 185 F. Supp. 3d
135 (D.D.C. 2016); see also Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007); Horsey v.
U.S. Dep’t of State, 170 F. Supp. 3d 256, 267 (D.D.C. 2016); Laughlin, 923 F. Supp. 2d at 211.
Indeed, a late-filed administrative complaint does not provide the agency with any timely notice,
let alone “sufficient” notice. Thus, the twenty-workday requirement is not a mere technicality
that can be circumvented by adherence to the “purpose” of the library regulations. See Nichols v.
Billington, 402 F. Supp. 2d 48, 69–70 (D.D.C. 2005) (“Problematically for Plaintiff, she did not
file an allegation of discrimination as to any of these selections within 20 workdays of the
discriminatory event as required by LCR 2010-3.1.” (emphasis added)), aff’d, No. 05-5326,
2006 WL 3018044 (D.C. Cir. Mar. 7, 2006).
But even if the “did not know and reasonably should not have known” discovery rule
were to apply in the context of the LOC regulations, Plaintiff’s claims would still be untimely for
two reasons. First, as explained below, infra Part V.B.3, the “knew or should have known”
standard would apply only to knowledge of the non-promotions, not the allegedly improper
motivation for the non-promotions. Ms. Sierra’s complaint seems to suggest that she was aware
that other employees were being approved for advancement while she was not and that, at each
of her annual reviews, she was told that she would not be promoted that year. See Compl. ¶¶ 18,
25(a). Second, even if the “knew or should have known” standard applied to Ms. Sierra’s
understanding of Ms. Lloyd’s motivation, she accuses Ms. Lloyd of overtly discriminatory
statements and criticism as early as 2009. See Compl. ¶¶ 19, 25(c).
In short, because Ms. Sierra did not adhere to the timing requirements of the LOC
regulations, with respect to the alleged non-promotions occurring before 2012, she did not
exhaust her administrative remedies in a timely fashion. And even if the timeline were to have
12
only begun after she “knew or should have known” of the discriminatory actions, she still would
not have timely exhausted.
2. The LOC Did Not Waive Its Non-Exhaustion Defense
Plaintiff next contends that the LOC waived its non-exhaustion defense by accepting and
investigating her administrative complaint. Notwithstanding a complainant’s untimely
submission of an administrative complaint, agencies can, under certain circumstances, waive the
defense of exhaustion by accepting a plaintiff’s complaint out of time. See Bowden v. United
States, 106 F.3d 433, 438 (D.C. Cir. 1997). Once a defendant shows non-exhaustion—as is the
case here—the plaintiff carries the burden of showing waiver. Estate of Rudder v. Vilsack, 10 F.
Supp. 3d 190, 195 (D.D.C. 2014).
“[A]gencies do not waive a defense of untimely exhaustion merely by accepting and
investigating a discrimination complaint . . . .” Bowden, 106 F.3d at 438. Successfully invoking
the equitable doctrine of waiver requires a plaintiff to show not only that an agency accepted and
investigated a discrimination complaint, but also that it decided it on the merits “without
mentioning timeliness.” Nurriddin v. Bolden, 674 F. Supp. 2d 64, 86 (D.D.C. 2009) (quoting
Bowden, 106 F.3d at 438). The out-of-jurisdiction case that Plaintiff cites in support of her
claim, see Pl.’s Opp’n at 11, goes even further, holding that an agency waives the defense of
non-exhaustion only by “making an express finding that the complaint was timely or failing to
appeal an EEOC determination of timeliness.”7 See Seals v. Potter, 787 F. Supp. 2d 239, 243
(N.D.N.Y. 2011) (quoting Bruce v. U.S. Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002)). In
Seals, the plaintiff argued that the agency had waived its non-exhaustion argument because it
7
Of course, the Court cites Seals only to address Plaintiff’s argument, because it is the
case she explicitly relies upon. The Court need not and does not adopt the rule in Seals to decide
this case.
13
“accept[ed] and pursu[ed]” her administrative complaint. Id. Reasoning that “government
agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a
discrimination complaint,” that court rejected that argument because the agency did not make an
express finding of timeliness. Id. (quoting Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001)
(per curiam)).
Ms. Sierra in no way shows that the LOC decided her discrimination complaint on the
merits without mentioning timeliness, as required under Nurriddin, 674 F. Supp. 2d at 86. In
fact, she does the opposite. Ms. Sierra attaches the LOC’s administrative decision to her
opposition, which contains the following paragraph:
The record revealed that you first contacted an EEO Counselor on or about
December 27, 2013, and that the last time you asked Ms. Lloyd for a promotion . .
. was 2012. Accordingly, your claim of non-promotion failed to comply with the
time limits of Library of Congress Regulation 2010-3.1, Policy and Procedures
for Filing Equal Employment Opportunity Complaints of Discrimination.
ECF No. 6-5 (“LOC Administrative Decision”) at 10. Thus, rather than ignoring the timeliness
issue or expressly finding that Plaintiff’s claims were timely, the LOC found that they were
untimely. Accordingly, Plaintiff has failed to show that the LOC waived its defense of untimely
exhaustion.
3. Plaintiff Has Not Demonstrated that She Is Entitled to Equitable Tolling
Ms. Sierra next argues that the twenty-workday deadline was tolled until she knew that
she was discriminated against and could assert her claims without fear of reprisal, which
occurred in December 2013 when “the confluence of facts and the needed support from [the
LOC’s CFO] enabled [Ms.] Sierra to . . . safely assert her claims for the first time.” Pl.’s Opp’n
at 12. In support of her assertion that she could not assert her claims without fear of reprisal, Ms.
Sierra contends that Ms. Lloyd “isolated [her] by forbidding her from speaking to . . . the Library
CFO.” Pl.’s Opp’n at 12. In support of her assertion that she did not have all the facts, she
14
contends that when she finally spoke to the CFO, the CFO informed her that another employee
was asserting discrimination. Pl.’s Opp’n at 12. Because Ms. Sierra’s argument is incongruent
with the relevant legal standard for tolling, the Court rejects her argument.
As with waiver, the plaintiff bears the burden of showing that she is entitled to equitable
tolling. Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007) (citing Harris v. Att’y Gen. of
the U.S., 400 F. Supp. 2d 24, 26 (D.D.C. 2005)). The Court’s equitable power to toll the twenty-
workday time limit imposed by the LOC—which, as noted above, begins to run at the time of the
alleged discriminatory event, see LCR 2010-3.1 § 4(A)—“will be exercised only in extraordinary
and carefully circumscribed instances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C.
Cir. 1988); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“Federal courts
have typically extended equitable [tolling] only sparingly.”).
In the context of non-promotion, courts are open to tolling administrative deadlines until
the time when the complainant had reason to know that she was not selected for a promotion.
See, e.g., Hairston v. Tapella, 664 F. Supp. 2d 106, 114 (D.D.C. 2009). However, such equitable
tolling only applies when “despite all due diligence, a plaintiff is unable to discover essential
information bearing on the existence of his claim,” which does not include details about the
decision-making process. Pacheco v. Rice, 966 F.2d 904, 906–07 (5th Cir. 1992) (emphasis
added) (also noting that “[t]he doctrine of equitable tolling has it limits,” including “[t]he
requirement of diligent inquiry [that] imposes an affirmative duty on the potential plaintiff”);
accord Vasser, 2016 WL 7480263, at *8.
In the context of allegations that the defendant blocked access to the administrative
process, “to successfully assert equitable estoppel, [the plaintiff] must demonstrate that [s]he was
diligent and must point to ‘active steps’ the defendant took to prevent the plaintiff from making a
15
timely filing.” Cristwell v. Veneman, 224 F. Supp. 2d 54, 60 (D.D.C. 2002) (“For a plaintiff to
successfully assert equitable estoppel, when it is alleged that an untimely filing was a result of
conduct by the defendant, the plaintiff must be able to point to some type of ‘affirmative
misconduct’ or misleading information regarding the filing deadline by the defendant.” (citing
Irwin, 498 U.S. at 96)). Conclusory allegations lacking particularity that agency officials acted
in bad faith are insufficient to show “active steps” preventing timely filing. Id.
Ms. Sierra has not carried the heavy burden of showing that the twenty-workday
limitation should be tolled. Her argument that she did not have sufficient information because
she was not told of other instances of discrimination is insufficient because the existence of such
other cases is not “essential” to her own claim under Pacheco and Vasser. See 966 F.2d at 906–
07; 2016 WL 7480263 at *8. There is no indication that she was unaware that she was passed up
for promotion, let alone that she could not have been aware of the fact despite “all due
diligence.” See Pacheco, 966 F.2d at 906–07. In fact, she pleads the opposite. Ms. Sierra
alleges that Ms. Lloyd consistently “mov[ed] the goalposts” each time she met the previously
defined requirements for promotion during her annual reviews. Compl. ¶ 18. She further alleges
that Ms. Lloyd told her that she was not going to be promoted during performance reviews.
Compl. ¶¶ 19–20. And even further assuming that lacking knowledge of animus justifies tolling,
Ms. Sierra alleges that Ms. Lloyd publicly mocked her because English was not her first
language as early as 2009 and called her a “traitor” for helping with a 2010 library program in a
Spanish-speaking country. See Compl. ¶¶ 19, 25(c). Thus, even assuming that the twenty-
workday clock could be tolled by a plaintiff showing that she had no knowledge of the animus
against her, Ms. Sierra has, if anything, alleged the opposite.
16
Nor has Ms. Sierra shown that she was actively prevented from pursuing her claim by
anyone in the LOC. The fear of reprisal that she alleges is stated in mere conclusory terms,
backed only by her contention that she was prevented from directly contacting the CFO of the
library. See Pl.’s Opp’n at 12. Although contact with the CFO may have provided Ms. Sierra
with information about a separate allegation of discrimination leading her to pursue her own
complaint, she does not explain how hindrances to contacting the CFO affected her ability to
contact a counselor with the LOC’s EEOCO. As noted above, the LOC EEOCO is headed by
the EEOCO Chief, who operates under the “general guidance” of the associate Librarian for
Management. See LCR 2010-3.1 § 3(A). The LOC CFO, in comparison, deals with LOC
budget planning and implementation. See Upshaw v. Tenenbaum, No. 12-cv-3130 2013 WL
3967942, at *1 (D. Md. July 31, 2013).
Ms. Sierra has not carried her burden of showing that extraordinary circumstances
justifying tolling are present. She has not demonstrated that she lacked information that was
essential to her claim, let alone information that she could not have accessed with due diligence.
She also fails to explain how her supervisors actively prevented her from filing an LOC EEOC
complaint. Accordingly, she is not entitled to equitable tolling of her untimely non-promotion
claims for the years 2008 through 2012.8
C. Non-Promotions from 2014 to 2016
Defendant also moves to dismiss Ms. Sierra’s failure-to-promote claims that occurred
from 2014 to 2016, on the grounds that she did not file her administrative complaint until after
she filed this case. See Def.’s Mot. Dismiss at 8. Plaintiff argues that “[t]he discriminatory act
of non-promotion began in 2008 and continues to this day,” and notes that she filed a second
8
The Court addresses the issue of non-promotion in 2013 below in Section D.
17
administrative complaint after she filed the instant complaint. See Pl.’s Opp’n at 14. In essence,
she invokes the “continuing violation” theory, which holds that an administrative complaint of
ongoing discrimination incorporates subsequent, “essentially similar” conduct. See Pl.’s Opp’n
at 14; Loe v. Heckler, 768 F.2d 409, 420 (D.C. Cir. 1985). Because that theory is inapplicable to
Ms. Sierra’s claims, the Court will dismiss her claims of non-promotion between 2014 and 2016
for prematurely filing this suit before exhausting her administrative remedies. But even if Ms.
Sierra had not prematurely filed this lawsuit, the Court would still dismiss her claims for failure
to timely exhaust administrative remedies.
The Supreme Court squarely addressed this issue in National Railroad Passenger
Corporation v. Morgan, 536 U.S. 101 (2002). There, the plaintiff alleged that he was
“consistently harassed and disciplined more harshly than other employees [because] of his race.”
Id. at 105–06. The government moved for summary judgment on all claims that took place prior
to the administrative filing period.9 Id. at 106. The Supreme Court held that the plaintiff was
required to exhaust all his claims, reasoning that “discrete discriminatory acts are not actionable
if time barred, even when they are related to acts alleged in timely filed charges,”10 and “[e]ach
discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113–14.
Interpreting Morgan, other courts in this district have explicitly “rejected the ‘continuing
9
Although the case involved the EEOC as opposed to the LOC, the relevant language is
indistinguishable. Compare LCR 2010-3.1 § 4(A) (“A staff member . . . who believes that []she
has been, or is being, discriminated against . . . shall notify and consult with a Counselor not later
than 20 workdays after the date of the alleged discriminatory matter.” (emphasis added)), with
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (“A charge under this
section shall be filed within one hundred and eighty days after the alleged unlawful employment
practice occurred.” (quoting 42 U.S.C. § 2000e-5(e)(1))).
10
Non-promotions are discrete discriminatory acts. Morgan, 536 U.S. at 114 (“Discrete
acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to
identify.”); see also Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003);
Massaquoi v. District of Columbia, 81 F. Supp. 3d 44, 53 (D.D.C. 2015).
18
violation’ theory that would permit plaintiffs to recover for discrete acts of discrimination and
retaliation that were not exhausted but were ‘sufficiently related’ to exhausted claims.” Payne v.
Salazar, 628 F. Supp. 2d 42, 51 (D.D.C. 2009), aff’d in relevant part, rev’d in part, 619 F.3d 56
(D.C. Cir. 2010) (internal quotation marks omitted) (citing Wada v. Tomlinson, 517 F. Supp. at
183); see also Prescott-Harris v. Fanning, No. 15-cv-1716, 2016 WL 7223276, at *3 (D.D.C.
Dec. 12, 2016); Keeley v. Small, 391 F. Supp. 2d 30, 40 (D.D.C. 2005).
As noted above, Ms. Sierra has not exhausted her claims of alleged non-promotion
occurring from 2014 to 2016. See September 2016 LOC Compl. at 2. Indeed, she did not raise
her 2014 or 2015 claim until September 2016 at the earliest. See September 2016 LOC Compl.;
see also Pl.’s Opp’n at 14. Her argument that the non-promotions were part of a continuing
violation has previously been rejected by the Supreme Court in Morgan. Ms. Sierra cites to Loe,
768 F.2d at 420, but, under Morgan, Loe is no longer good law in this circuit. Bowie v. Ashcroft,
283 F. Supp. 2d 25, 34 (D.D.C. 2003). Assuming that her supervisors subjected her to ongoing
discrimination, Ms. Sierra had an obligation to file administrative complaints within the time
required under library regulations for each alleged non-promotion, because each instance of non-
promotion constituted a “discrete discriminatory action.” See Morgan, 536 U.S. at 114.
In addition, Ms. Sierra’s 2014, 2015, and 2016 administrative complaints were not timely
exhausted. Her third LOC complaint, see Pl.’s Opp’n at 14, was filed on September 12, 2016,
see September 2016 LOC Compl. In that complaint, she alleges that her supervisor “refused to
promote [her] to a GS-14” on August 4, 2016, well more than twenty workdays before she filed
her complaint, and at least several months before the next-latest non-promotion in 2015.
September 2016 LOC Compl. Thus, Ms. Sierra did not timely exhaust her administrative
remedies for alleged non-promotions occurring from 2014 to 2016. Because Ms. Sierra filed this
19
lawsuit before her latest administrative complaint and did so over twenty workdays after the
latest alleged non-promotion, the Court dismisses Ms. Sierra’s complaint with respect to alleged
non-promotions occurring from 2014 to 2016.
D. 2013 Non-Promotion
Ms. Sierra argues that regardless of how the Court rules on the other non-promotions, she
has stated a claim for discriminatory non-promotion in 2013. See Pl.’s Opp’n at 15. According
to the complaint, Ms. Lloyd had the opportunity to promote Ms. Sierra in 2013, but refused to do
so.11 Compl. ¶ 24. Ms. Sierra concedes that she did not request a promotion in 2013. See
Compl. ¶ 28; LOC Administrative Decision at 10; see also Pl.’s Opp’n at 15. Defendant did not
move to dismiss any claim related to a 2013 non-promotion, see generally Def.’s Mot. Dismiss,
nor did it brief the issue of whether an employee must request a promotion to state a claim for
non-promotion, see generally id.; Def.’s Reply, ECF No. 8.12 Nonetheless, the Court briefly
analyzes the issue and concludes that Ms. Sierra’s 2013 non-promotion claim is likely
dismissible because she did not seek out a promotion.
When, as here, a plaintiff alleges that she was denied a promotion in grade and salary—as
compared to a promotion into a vacant position—to establish a prima facie case, the plaintiff
11
In its reply, Defendant argues that asserting a 2013 non-promotion is a “new claim” not
fairly encompassed in the complaint. Def.’s Reply at 3 n.1. Although Plaintiff’s complaint is
not a paragon of clarity, she does specifically allege that Ms. Lloyd had the opportunity to
promote her in 2013, but discriminatorily refused to do so. See Compl. ¶ 24. She elaborated on
other instances of non-promotion in greater detail later in her complaint, but this does not mean
she did not allege a claim with respect to the 2013 non-promotion.
12
To be sure, in its reply, Defendant does argue that Ms. Sierra never administratively
raised a non-promotion claim in 2013. Def.’s Reply at 3 n.1. But because this argument was not
made in Defendant’s motion to dismiss, see generally Def.’s Mot. Dismiss, the Court will not
dismiss the claim. See Walker v. Pharm. Research & Mfrs. of Am., 461 F. Supp. 2d 52, 58 n.9
(D.D.C. 2006) (“Because the plaintiff only addresses this particular claim in her reply to the
motion . . . , the plaintiff has waived the argument.”).
20
“must show that (1) [s]he sought and was denied a promotion (2) for which [s]he was qualified,
and (3) that other employees of similar qualifications . . . were indeed promoted at the time the
plaintiff’s request for promotion was denied.” Nurriddin v. Bolden, 40 F. Supp. 3d 104, 120
(D.D.C. 2014) (internal alterations and quotation marks omitted) (quoting Taylor v. Small, 350
F.3d 1286, 1294 (D.C. Cir. 2003)), aff’d, 818 F.3d 751 (D.C. Cir. 2016); see also Bundy v.
Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981); Cones v. Shalala, 199 F.3d 512, 517 (D.C. Cir.
2000) (noting that the Bundy test is “designed expressly for denials of pay or grade increases”).
This first element requires the plaintiff to affirmatively show that she sought and was denied a
promotion. See Taylor, 350 F.3d at 1294–95.
Ms. Sierra did not request a promotion in 2013. Under the circumstances of this case,
seeking out an increase in grade or salary is a prerequisite to suing for non-promotion. See
Bundy, 641 F.2d at 951. But because Defendant did not move to dismiss the 2013 non-
promotion, the Court will do no more than note that Ms. Sierra’s claim for non-promotion in
2013 is likely dismissible. See Fields v. Bellamy, 1994 WL 549470, at *1 (D.C. Cir. 1994)
(“[S]ua sponte Rule 12(b)(6) dismissal is appropriate only when it is ‘patently obvious that
the plaintiff could not have prevailed on the facts alleged in [her] complaint.’”) (alterations
omitted) (quoting Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (per
curiam)).
VI. CONCLUSION
For the foregoing reasons, Defendant’s Partial Motion to Dismiss is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 1, 2017 RUDOLPH CONTRERAS
United States District Judge
21
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617 So.2d 373 (1993)
Francis X. McMONAGLE, Appellant/Cross-Appellee,
v.
Peggy McMONAGLE, Appellee/Cross-Appellant.
No. 92-1324.
District Court of Appeal of Florida, Fifth District.
April 16, 1993.
Douglas D. Marks of Potter, McClelland, Marks & Healy, P.A., Melbourne, for appellant/cross-appellee.
Karen T. Brandon of Karen T. Brandon, P.A., Melbourne, for appellee/cross-appellant.
W. SHARP, Judge.
Francis McMonagle appeals from a final judgment of dissolution of marriage questioning the equitable distribution of marital assets, and Peggy McMonagle, his former wife, cross appeals an award of attorney's fees to Francis. The trial judge made findings concerning the nature and value of the parties' marital and nonmarital assets, and awarded the marital assets equally to each party. However, it did not reference the factors listed in section 61.075(1),[1] which should be used in any contested case to justify any equitable distribution of marital *374 assets, fifty-fifty or otherwise.[2] Further, the trial judge expressly stated that he thought the final result of his decree was "inequitable because the Wife will have more than doubled her assets while the Husband's will be cut in half." We reverse.
The record in this case discloses that this was a short, incompatible marriage (less than two years), entered into by the parties when they were fifty-six years of age and it was (at least) a second marriage for both. All of the parties' assets had been acquired prior to their marriage. Neither made any substantial contribution to the other's income or assets during the marriage.
Francis put his residence, which he owned prior to the marriage (valued at $130,000), in their joint names, and also gave Peggy an interest in his certificates of deposit ($19,439.66) by putting them in joint names. Peggy had $60,000 in premarital assets, in which she retained the sole interest. The trial judge found Francis intended to make a gift to Peggy of one-half of his premarital assets. He concluded that Robertson v. Robertson, 593 So.2d 491 (Fla. 1991) and § 61.075(5)(a)5 were controlling, and that they mandate an equal split of these gifted assets.
We think that is a misconception of both Robertson and section 61.075(5)(a)5. The record supports the trial judge's finding that a gift to Peggy was intended of Francis' assets, and therefore they became "marital assets."[3] However, nothing in either the statute or Robertson requires an equal split of marital assets between the parties. That may be a "good starting point"[4] in some dissolution cases, but it should not end with an "inequitable result" in any case.
Accordingly, we reverse the judgment appealed, including the award of attorney's fees, so that the trial judge may revisit this case in its totality. In making an equitable distribution of the parties' marital assets, the trial judge should reference the relevant factors set forth in section 61.075(1).[5]
REVERSED and REMANDED.
DIAMANTIS, J., and WHITE, A.B., Associate Judge, concur.
NOTES
[1] Section 61.075 provides:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
(i) Any other factors necessary to do equity and justice between the parties.
[2] § 61.075(3), Fla. Stat. (1991).
[3] See Robertson v. Robertson, 593 So.2d 491 (Fla. 1991) and section 61.075(5)(a)5, which provides:
All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.
[4] Privett v. Privett, 535 So.2d 663, 665 (Fla. 4th DCA 1988); Rico v. Rico, 487 So.2d 1161 (Fla. 5th DCA 1986); Tuller v. Tuller, 469 So.2d 212 (Fla. 5th DCA 1985).
[5] Bussey v. Bussey, 611 So.2d 1354 (Fla. 5th DCA 1993); Bain v. Bain, 553 So.2d 1389 (Fla. 5th DCA 1990).
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754 F.Supp. 166 (1989)
Gary GRIFFITH and Donna Rae Griffith, Plaintiffs,
v.
MARTECH INTERNATIONAL, INC., Don O. Croft, and Thomas G. Croft, Defendants.
No. 88-01495 WDK (Sx).
United States District Court, C.D. California.
October 6, 1989.
*167 *168 Walter Klein, Jack A. Klauschie, Jr., Wilner, Narwitz & Klein, Beverly Hills, Cal., for defendant Martech Intern., Inc.
Gerald M. Fisher, Frank C. Brucculeri, Fisher, Porter & Kent, Long Beach, Cal., for defendants Don O. Croft and Thomas G. Croft.
Randy J. Ungar, Ungar & Wheelahan, New Orleans, La., Stephen H. Tabor, Armstrong & Tabor, Los Angeles, Cal., for plaintiffs Gary Griffith and Donna Rae Griffith.
ORDER RE DEFENDANTS CROFTS' MOTION FOR SUMMARY JUDGMENT AND RULE 11 SANCTIONS
KELLER, District Judge.
For the reasons set forth below, Defendants CROFTS' motion for summary judgment is GRANTED, and CROFTS' motion for Rule 11 sanctions is DENIED.
I. BACKGROUND
Plaintiff Gary Griffith is a professional diver who was employed by defendant Martech International (Martech) in May 1987. At that time, Plaintiff was involved in a particular Martech diving operation aboard the vessel Misty Eserman during which Plaintiff contracted the "bends." The Misty Eserman had been "time-chartered" by Martech from Defendants Don O. Croft and Thomas G. Croft (Crofts), the owners of the vessel. In addition to the vessel under the time-charter, the Crofts also provided a three-person crew to navigate and operate the vessel. All diving equipment used in the diving operation was the property of Martech and was loaded and stored by Martech employees.
Plaintiff has brought suit against both Martech and the Crofts for his injuries, alleging negligence and unseaworthiness claims under the Jones Act, 46 U.S.C.App. § 688, and general maritime law. As the foundation for these claims, Plaintiff asserts that certain actions by Defendants were negligent and that certain equipment brought aboard the Misty Eserman by Martech was defective. Plaintiff's wife, Donna Rae Griffith, has additionally filed suit for loss of society and/or consortium.
The unseaworthiness claim, with its concomitant claim for punitive damages, was dismissed as to Martech by this Court by order dated November 2, 1988 on the basis that Martech had "time-chartered," as opposed to "demise-chartered," the vessel and did not therefore have the requisite control of the vessel needed for the action of unseaworthiness. Plaintiff has stipulated to a dismissal with prejudice of the negligence claims against the Crofts. Thus, all that remains of this case is a claim under the Jones Act against Martech and a claim of unseaworthiness under general maritime law against the Crofts. The Crofts now move this Court to grant summary judgment on the unseaworthiness claim. The Crofts also move for sanctions pursuant to Fed.R.Civ.P. 11 against Plaintiff, claiming that Plaintiff's action is frivolous.
II. DISCUSSION
The doctrine of seaworthiness involves the absolute and nondelegable duty of an owner or operator of a vessel to provide a vessel and its appurtenances that are fit for their intended purposes. 2 M. Norris, The Law of Seamen § 27:2, 193-94 (4th ed. 1985); T. Schoenbaum, Admiralty and Maritime Law § 5-3, 164-65 (1987). The failure to meet this duty results in strict liability for any injuries to persons falling within the scope of the doctrine's *169 protection that are caused by such failure. 2 M. Norris, The Law of Seamen § 27:3, at 200.
The scope of the doctrine's protection, however, is not unlimited. The duty of a shipowner to furnish a seaworthy vessel is relational, arising out of the relationship of the shipowner and his or her sailors. 2 M. Norris, The Law of Seamen § 27:2, at 196. The duty therefore extends only to "seamen." 2 M. Norris, supra, § 27:2, at 194; T. Schoenbaum, supra, § 5-4, at 170. Correlatively, the duty does not extend to passengers, visitors, or other persons of similar status aboard a vessel, T. Schoenbaum, supra, § 5-4, at 170, who are instead owed only a duty of due care, a negligence standard. 1 M. Norris, The Law of Maritime Personal Injuries § 54, at 98 (3d ed. 1975).
Thus, a necessary prerequisite in the present case to Plaintiff's maintenance of his cause of action for unseaworthiness is that Plaintiff, in fact, be a seaman. Crofts contend that, as a matter of law, Plaintiff is not a seaman vis-a-vis the Crofts and that this Court should grant summary judgment on this basis. The initial inquiry that must therefore be made by this Court in consideration of Crofts' motion is whether there exists any issue of fact as to Plaintiff's status as seaman vis-a-vis the Crofts, that is, whether the Crofts owed Plaintiff an absolute duty. While seaman status is generally a question for the trier of facts, summary judgment may be granted where there exists no evidentiary basis to support a finding that the plaintiff was, or, conversely, was not a seaman at the time of injury. Omar v. Sea-Land Service, Inc., 813 F.2d 986, 988-989 (9th Cir.1987); 2 M. Norris, The Law of Seamen § 30:8, at 353. But see T. Schoenbaum, supra, § 5-5, at 39 (1989 Supp.) ("Summary judgment or its equivalent denying seaman status is now routine.") (emphasis in original).
In the Ninth Circuit, a person's status as "seaman" is dependent upon three factors: "(1) the vessel on which the claimant was employed must be in navigation; (2) the claimant must have a more or less permanent connection with the vessel; and (3) the claimant must be aboard primarily to aid in navigation." Estate of Wenzel v. Seaward Marine Services, Inc., 709 F.2d 1326, 1327 (9th Cir.1983); Omar, supra, 813 F.2d at 988; Bullis v. Twentieth Century-Fox Film Corp., 474 F.2d 392, 393 (9th Cir.1973). It is this third factor upon which the Court focuses in the case at hand.
It is undisputed that the Crofts employed and supplied all of the crew necessary to navigate and operate the vessel pursuant to the time-charter by Martech. It is further undisputed that Plaintiff did not perform such work, but rather was employed by Martech, the charterer, solely to perform the duties of a professional diver in a Martech diving operation. There is no indication that the Crofts benefitted from or participated in this operation in any way other than as the provider of transportation for Martech employees and equipment to and from the diving site. It is therefore this Court's determination that, as a matter of law, the Crofts and Plaintiff did not entertain the relationship necessary to qualify Plaintiff as a seaman vis-a-vis the Crofts. Rather, as to the the Crofts, Martech employees and equipment were, respectively, passengers and cargo to which the absolute duty of the Crofts as shipowners does not extend. See Smith v. American Mail Line Ltd., 525 F.2d 1148, 1150 (9th Cir.1975); 2 M. Norris, The Law of Seamen § 27:2, at 194 n. 14.
The facts of the action now before this Court appear to be unique in the case law as neither counsel has been able to cite any case on point that this Court might look to for guidance. Nevertheless, in support of its determination, the Court finds it instructive to compare the situation in which a vessel is demise-chartered. In such a situation, the shipowner remains liable for defects in the vessel that existed prior to the commencement of the charter. Where, however, such defects arise after the delivery of the vessel to the charterer, the shipowner is absolved of in personam liability. Baker v. Raymond International, Inc., 656 F.2d 173 (5th Cir.1981); *170 Schoenbaum, supra, § 5-3, at 168. The Fifth Circuit explained in Baker that this line of distinction arose out of the view that a faultless shipowner should not be held liable. Baker, supra, 656 F.2d at 183.
Thus, this scheme of personal shipowner liability indicates that, while the application of the strict liability doctrine of seaworthiness in any particular situation is completely divorced from notions of fault, 2 M. Norris, The Law of Seamen § 27:3, at 200, the initial imposition of that absolute duty, or, in other words, the finding of a seaman relationship vis-a-vis the shipowner, must to some extent be bound up with the possibility of fault on the part of the shipowner. It seems, then, that where it is inconceivable that a shipowner may be responsible in some possible way for injuries sustained by a person aboard a vessel, such as where the shipowner does not control the instrumentality causing the injury or does not control or otherwise benefit from the services of the injured person, strict liability will not obtain.
This Court's granting of summary judgment in the present action is consistent with the analysis expressed above. Plaintiff was employed by Martech to participate in a Martech diving operation using Martech diving equipment. Crofts' sphere of responsibility encompassed only the navigation and operation of the vessel chartered by Martech. Plaintiff's services thus did not run to the Crofts as shipowners in the same manner as, for instance, that of a longshoreman's unloading of a shipowner's vessel in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). This Court will not therefore expand the strict liability doctrine of unseaworthiness to circumscribe the situation at bar. As to the Crofts, Martech's employees and equipment were passengers and cargo.
Notwithstanding the fact that a shipowner may not be directly held to be personally liable for unseaworthy defects arising after a demise-charter of the owner's vessel, the shipowner may be indirectly held liable for such defects in that suit may be brought against the vessel itself in rem. See In the Barnstable, 181 U.S. 464, 21 S.Ct. 684, 45 L.Ed. 954 (1901); Reed v. Steamship Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). As the Fifth Circuit discussed in Baker v. Raymond International, supra, 656 F.2d at 183-84, this development in the law essentially struck a balance between two competing intereststhat of ensuring that innocent victims of insolvent charterers receive compensation on the one hand, and that of ensuring that blameless shipowners are not held liable on the other.
In consideration of this state of the law, this Court acknowledges, but does not reach the issue, that Plaintiff may have an unseaworthiness claim against the vessel, Misty Eserman.[1] The parties were, in fact, in agreement on this position at the hearing on this matter held on October 2, *171 1989, and much of the foregoing discussion serves only to satisfy the Court of that position. Even assuming arguendo that Plaintiff does possess a valid unseaworthiness claim against the Misty Eserman, however, summary judgment in favor of the Crofts is not precluded. The vessel is a separate and distinct defendant that is not before this Court.
In response to this contention, Plaintiff argued at hearing that although this action was in substance a claim against the vessel Misty Eserman, the Crofts must answer in personam for those claims. Were this Court sitting in the Fifth Circuit, Plaintiff would appear to be correct, which may account for the vehement disagreement between the parties' counsel on this issue at hearing. In Baker v. Raymond International, supra, 656 F.2d 173, the Fifth Circuit, expressly departing from prior law restricting recovery for injuries in the demise-charter scenario to actions against the charterer or vessel, see discussion supra at 184, held that "a seaman may have recourse in personam against the owner of an unseaworthy vessel, without regard to whether owner or bareboat [demise] charterer is responsible for the vessel's condition." Id. at 184. Baker, however, has not been explicitly, nor apparently implicitly, adopted by the Ninth Circuit, and, given the seemingly divergent views of the two circuits with respect to the expansion of the cause of action for unseaworthiness, see discussion supra, note 1 at 184, this Court declines to adopt the Fifth Circuit approach in the present case. The Crofts' motion for summary judgment is therefore GRANTED.
In light of the foregoing discussion, the Court does not believe Plaintiff's claim to be frivolous, and Crofts' motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure is therefore DENIED.
IT IS SO ORDERED.
NOTES
[1] The Court recognizes that such a contention requires a difficult conceptualization to be made, in that Plaintiff must be viewed both as a passenger vis-a-vis the Crofts and their mission of transportation and as a seaman vis-a-vis the Misty Eserman and its mission as a diving boat. Nevertheless, in light of the foregoing discussion, this conceptualization seems legitimate.
The Court notes, however, that, at least in the Ninth Circuit, the contention that Plaintiff in the present case is a seaman vis-a-vis the vessel may be debatable. It is clear that "seaman" has been given a broad meaning under the doctrine set forth by the Supreme Court in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), see T. Schoenbaum, supra, § 5-4, at 171, which Plaintiff cited in hearing as the foundation for his unseaworthiness claim. The Ninth Circuit in Normile v. Maritime Co. of the Philippines, 643 F.2d 1380 (9th Cir.1981), however, determined that the 1972 amendments to the Longshore and Harbor Workers Compensation Act entirely overruled Sieracki, at least with respect to longshoremen and harbor workers. Id. at 1382-83. See T. Schoenbaum, supra, § 5-4, at 172 n. 14. The Fifth Circuit has rejected this contention and has continued to take the expansive view of "seaman" formulated by that circuit in Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir.1959). See Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir.1981); T. Schoenbaum, supra, § 5-4, at 172 n. 15. In the Ninth Circuit, then, any attempt to expand the doctrine of "Sieracki seaman" must be viewed as questionable. See T. Schoenbaum, supra, § 5-4, at 172; Id. at § 5-5, at 35 (1989 Supp.) ("The criticism directed at the Courts of Appeal, particularly the Fifth Circuit, because of their liberal formulation of the test for seaman status has grown apace."). See, e.g., Craig v. M/V Peacock, 760 F.2d 953 (9th Cir.1985) (not clearly erroneous for magistrate to conclude that researcher aboard a research vessel chartered by researcher's employer was not a seaman for the purpose of bringing an unseaworthiness action against the vessel).
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895 F.2d 1488
58 USLW 2618
NCNB TEXAS NATIONAL BANK, et al., Plaintiffs-Appellees,v.Candice Beth COWDEN and Billi Terresa Cowden, Defendants-Appellants.
No. 89-1439.
United States Court of Appeals,Fifth Circuit.
Feb. 26, 1990.
Marc L. Skeen, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, Tex., for defendants-appellants.
Paul R. Aiello, Baker & Botts, Michael L. Graham, Dallas, Tex., Stanley M. Johanson, Vinson & Elkins, Austin, Tex., Stephen Gillham Tipps, Baker & Botts, Houston, Tex., for NCNB Texas Nat. Bank.
William Franklin Carroll, John M. Nevins, Mark J. Zimmermann, Bruce L. Collins, III, Baker, Mills & Glast, R.J. Hobby, Dallas, Tex., for Federal Deposit Ins. Corp., et al.
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, SMITH and DUHE, Circuit Judges.
REAVLEY, Circuit Judge:
1
In this case we must determine whether the Federal Deposit Insurance Corporation (FDIC), in its capacity as receiver of an insolvent banking institution, had authority in 19881 to transfer the fiduciary appointments held by the insolvent bank to a federally created bridge bank. The district court ruled that federal law authorized FDIC to make such a transfer and that, to the extent it conflicted with FDIC's authority, Texas law relating to transfer of fiduciary appointments was pre-empted. We affirm.
I.
2
On July 29, 1988, the Office of the Comptroller of the Currency (OCC) and the Texas Banking Commissioner declared the forty national and state banks in Texas that were directly or indirectly owned by First RepublicBank Corporation (FRBC) insolvent and appointed FDIC to act as receiver of each of these institutions. In its capacity as receiver, FDIC on the same day entered into forty purchase and assumption agreements with JRB Bank, National Association ("JRB Bank"), a bridge bank chartered by FDIC pursuant to 12 U.S.C. section 1821(i) (current version at 12 U.S.C. section 1821(n)).2 These agreements required FDIC to transfer certain deposits, assets, liabilities, and obligations of the closed banks to JRB Bank. Also on July 29, 1988, the Federal Reserve Board approved the application of NCNB Corporation, a bank holding company, to acquire control of JRB Bank, and JRB Bank was renamed NCNB Texas National Bank ("NCNB Texas").3 The record does not reflect whether NCNB Texas is a continuation of the bridge bank under a different name or a new banking entity that took over JRB Bank following its short existence. The parties have treated NCNB Texas as a continuation of the bridge bank, and our analysis is based on that understanding. Although we refer to both JRB Bank and NCNB Texas, for all important purposes they are one entity and enjoy equivalent rights.
3
First RepublicBank Midland ("FRB-Midland") was one of the banks affected by the insolvency declarations. At the close of business on July 29, 1988, FRB-Midland was serving as executor or administrator of approximately eighteen estates and as trustee of over nine hundred trusts created by various trust instruments.4 One set of obligations FDIC sought to transfer to NCNB Texas through the transactions described above was these fiduciary appointments previously held by FRB-Midland. Section 4.7 of the purchase and assumption agreement relating to FRB-Midland ("P & A Agreement") provided:
4
Agreement With Respect to Trust Business. The trust business of the Failed Bank [FRB-Midland] is hereby transferred to the Assuming Bank [JRB Bank] effective as of Bank Closing.
5
(a) The Assuming Bank shall, without further transfer, substitution, act or deed, to the full extent permitted by law, succeed to the rights, obligations, properties, assets, investments, deposits, agreements and trusts of the Failed Bank under (i) trusts, executorships, administrations, guardianships, agencies and (ii) other fiduciary or representative capacities, all to the same extent as though the Assuming Bank had originally assumed the same; provided, that any liability based on the malfeasance or nonfeasance of the Failed Bank, its directors, officers, employees or agents with respect to the trust business of the Bank is not assumed hereunder.
6
(b) The Assuming Bank shall, to the full extent permitted by law, succeed to, and shall be entitled to take and execute, the appointment to all executorships, trusteeships, guardianships and other fiduciary or representative capacities to which the Failed Bank is or may be named in wills, whenever probated, or to which the Failed Bank is or may be named or appointed by any other instrument.
7
(c) In the event additional proceedings of any kind are necessary to accomplish the transfer of such trust business (including the appointment by any court of the Assuming Bank as successor to the Failed Bank in any fiduciary or representative capacities), the Assuming Bank, at its own expense, agrees that it will take whatever action is necessary to accomplish such transfer. The Receiver agrees to use its reasonable best efforts to assist the Assuming Bank in accomplishing such transfer.
8
OCC approved the terms of the P & A Agreement. FDIC, acting as receiver, also sought and obtained an order approving the transaction from the United States District Court for the Western District of Texas. See In re Receivership of First RepublicBank Midland, No. 7-88-173, slip op. (W.D.Tex. July 29, 1988). That order provided in part that "the Assuming Bank be and hereby is, appointed as successor to all rights, obligations, assets, deposits, agreements and trusts held by the Bank as trustee, or in any other fiduciary or representative capacities, as provided in the Purchase and Assumption Agreement." Id. at 4. Thus, to the extent FDIC had authority to transfer fiduciary appointments, NCNB Texas succeeded to the fiduciary positions previously held by FRB-Midland.
9
Up until the time it was declared insolvent, FRB-Midland had been serving as the independent executor of the Estate of Billy Tom Cowden ("B.T. Cowden Estate"), which was being administered in accordance with the Last Will and Testament of Billy Tom Cowden ("B.T. Cowden Will"). FRB-Midland also was serving as trustee of the following trusts:
10
1. B.T. Cowden Trust. Pursuant to the Beneficiaries Agreement dated May 16, 1975, this trust was divided into two trust accounts.
11
a. Trust No. 1251 for the benefit of Candice Beth Cowden. Under the terms of the Trust Agreement, Candice became eligible to withdraw the entire principal from this trust on March 30, 1987.
12
b. Trust No. 1252 for the benefit of Billi Terresa Cowden. Under the terms of the Trust Agreement, Billi became eligible to withdraw the entire principal from this trust on November 30, 1988.
13
2. Candice Beth Cowden Trust, Trust No. 1090. The Trust Agreement provided that Candice could terminate the trust in whole or in part at any time.
14
3. Billi Terresa Cowden Trust, Trust No. 1244. The Trust Agreement provided that Billi could terminate the trust in whole or in part at any time.
15
4. Testamentary Trust created by the B.T. Cowden Will and funded by the residuary estate of Billy Tom Cowden.
16
The instruments creating the trusts did not provide for replacement of a trustee that becomes insolvent. Each trust instrument, however, established a procedure through which a trustee could resign and a successor trustee could be appointed. The B.T. Cowden Will did not provide for the selection of an alternate or successor independent executor.
17
On June 7, 1988, Candice had executed instruments purporting to withdraw the principal balance from Trust No. 1251 and to terminate Trust No. 1090. On June 15, 1988, Billi had executed an instrument purporting to terminate Trust No. 1244. FRB-Midland had made no distributions of the assets subject to these trusts prior to being declared insolvent. NCNB Texas subsequently offered to make the requested distributions, including transfer by warranty deed of all real property. The Cowdens, however, denied the validity of NCNB Texas' succession to the FRB-Midland fiduciary appointments and thus challenged its authority to make the distributions. By letter dated November 2, 1988, counsel for the Cowdens asserted that NCNB Texas had "not been appointed a successor fiduciary by any Court of competent jurisdiction" and that it could not "be a successor fiduciary without such an appointment." By letter dated November 30, 1988, counsel for the Cowdens, after reviewing "general principles of Texas law as to the personal nature of the position of trustee" and "the nature of the proceedings pursuant to which" FRB-Midland's fiduciary responsibilities were transferred to NCNB Texas, preliminarily concluded "that NCNB ... is not automatically the trustee of all trusts wherein a First RepublicBank institution had previously served as trustee, but that such may be true where there is special wording accomplishing that result in a particular trust instrument."
18
On November 30, 1988, NCNB Texas and FDIC brought this action in the United States District Court for the Western District of Texas seeking a judgment declaring that NCNB Texas was the valid successor to FRB-Midland's fiduciary appointments and enjoining the Cowdens from taking any action challenging NCNB Texas' exercise of its responsibilities pursuant to those appointments. The complaint alleged that the transfer of FRB-Midland's fiduciary appointments to NCNB Texas was authorized by federal banking laws and federal common law, which pre-empted any conflicting Texas estate and trust laws regulating the transfer of such appointments. In their Answer and Counterclaim, the Cowdens alleged that "FDIC Receiver was [not] empowered to effect a transfer of the fiduciary appointments held by First RepublicBank Midland incident to the Cowden Trusts" and that NCNB Texas could not "convey them good and marketable title to their trust assets." The parties submitted an Agreed Statement of Facts and each moved for summary judgment.
19
The district court ruled in favor of NCNB Texas and FDIC, declaring NCNB Texas the successor trustee to the Cowden trusts.5 See NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249, 1257 (W.D.Tex.1989). The court based its judgment on two alternate grounds. First, the court noted that in First National Bank v. Federal Deposit Insurance Corp., 707 F.Supp. 265 (W.D.Tex.1989), it had determined that, as a matter of Texas law, when the Texas Banking Commissioner appoints FDIC to act as receiver of a failed state bank FDIC has authority to transfer the failed bank's fiduciary appointments to a successor institution. The court held that "it would be anomalous to conclude that the demise of [a] nationally chartered banking institution did not permit a similar transfer of the fiduciary powers to a successor institution." NCNB Texas Nat'l Bank, 712 F.Supp. at 1253. Second, the court held that any Texas laws limiting FDIC's authority to transfer the fiduciary obligations of an insolvent bank were pre-empted. The court observed that "the United States Congress possesses the power to provide for the uninterrupted continuation of all banking activities of a failed bank and did so in enacting the statutory framework at bar." Id. In reaching its conclusion, the court emphasized
20
that the preemption of the Texas Trust Code is a narrow and extraordinary event. Only the FDIC acting as Receiver of a failed federally chartered institution transferring the trust relationships to a successor banking institution could validly accomplish a transfer of trustee powers. In all other matters, the Texas Trust Act controls the powers and duties of the trustee and the rights of the beneficiaries.
21
Id. The Cowdens appealed the district court's judgment.
22
Although this appeal technically relates only to the fiduciary appointments involving the B.T. Cowden Estate and the various Cowden trusts, the practical implications of our decision extend far beyond the impact on these positions and even beyond the impact on the remaining nine hundred plus fiduciary positions held by FRB-Midland on July 29, 1988. Twenty-four of the thirty-nine other FRBC institutions that were closed on that date had trust departments, and FDIC entered into purchase and assumption transactions purporting to transfer the fiduciary appointments of each of these to JRB Bank and thus to NCNB Texas. All totalled, the trust business of the FRBC institutions involved approximately one thousand appointments as executor, administrator, or guardian of estates involved in proceedings pending in approximately ninety-six different local courts statewide, more than seventeen thousand trusts created by various trust instruments, and over nine thousand corporate and employee benefit trusts. The assets of these estates and trusts are valued at approximately $50 billion. Evidence presented in the district court suggested that an attempt by NCNB Texas to obtain state court appointments as successor fiduciary for each of these positions would take several years and cost $8 million in legal expenses.6 Thus, a decision overturning the district court's ruling would not only force FDIC and/or NCNB Texas to incur substantial costs in attempting to secure appointment of NCNB Texas as a successor fiduciary, but it would also leave literally thousands of fiduciary positions vacant for a period of years. These considerations, though not dispositive of the issues before us, are relevant to the determination of Congress' goals in granting FDIC authority to deal with bank failures.
II.
A.
23
When Congress acts within the scope of its constitutionally delegated authority, the supremacy clause empowers Congress "to pre-empt state laws to the extent it is believed that such action is necessary to achieve its purposes." City of New York v. Federal Communications Comm'n, 486 U.S. 57, 63, 108 S.Ct. 1637, 1642, 100 L.Ed.2d 48 (1988). Likewise, Congress may delegate regulatory authority to an administrative agency, and when the agency acts within the scope of that authority, it may pre-empt and "render unenforceable state or local laws that are otherwise not inconsistent with federal law." Id.; see Louisiana Pub. Serv. Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 369, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986); Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153-54, 102 S.Ct. 3014, 3022-23, 73 L.Ed.2d 664 (1982). In this case, we must consider the pre-emptive effect of FDIC's actions in purporting to transfer FRB-Midland's fiduciary appointments to NCNB Texas. The analysis involves two considerations. We must first determine whether FDIC's conduct is the type of agency action giving rise to pre-emption of state law. If the conduct is pre-emptive, we must then determine whether FDIC acted within the scope of its congressionally delegated authority.
24
In undertaking our review, we bear in mind that "[t]he critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law." Louisiana Pub. Serv. Comm'n, 476 U.S. at 369, 106 S.Ct. at 1899, 90 L.Ed.2d 369. When the dispute involves the validity of agency action, however, the pre-emptive force of the action "does not depend on express congressional authorization to displace state law." De la Cuesta, 458 U.S. at 154, 102 S.Ct. at 3023, 73 L.Ed.2d 664. Rather, if "Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily." Id. at 153-54, 102 S.Ct. at 3022-23, 73 L.Ed.2d 664. In its recent decision in City of New York v. Federal Communications Commission, the Supreme Court noted:
25
It has long been recognized that many of the responsibilities conferred on federal agencies involve a broad grant of authority to reconcile conflicting policies. Where this is true, the Court has cautioned that even in the area of pre-emption, if the agency's choice to pre-empt "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned."
26
City of New York, 486 U.S. at 64, 108 S.Ct. at 1642, 100 L.Ed.2d 48 (quoting United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)). As the cases dealing with the pre-emptive effect of agency actions suggest, substantial deference to an agency's determination of its authority may be appropriate.
B.
27
The Supreme Court has clearly established that state law is pre-empted to the extent it conflicts with federal law. See California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987); Louisiana Pub. Serv. Comm'n, 476 U.S. at 368, 106 S.Ct. at 1898, 90 L.Ed.2d 369; De la Cuesta, 458 U.S. at 153, 102 S.Ct. at 3022, 73 L.Ed.2d 664. Thus, state law is pre-empted "when there is outright or actual conflict between federal and state law," Louisiana Pub. Serv. Comm'n, 476 U.S. at 368, 106 S.Ct. at 1898, 90 L.Ed.2d 369, or when " 'compliance with both federal and state regulations is a physical impossibility,' " Guerra, 479 U.S. at 281, 107 S.Ct. at 689, 93 L.Ed.2d 613 (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963)). A conflict also exists when "the state law stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)).
28
Under Texas law, in the absence of an explicit grant of authority in a will or trust instrument permitting transfer or delegation, the fiduciary responsibilities of an executor or trustee are neither transferrable nor delegable. See Transamerican Leasing Co. v. Three Bears, Inc., 586 S.W.2d 472, 476 (Tex.1979); West v. Hapgood, 141 Tex. 576, 174 S.W.2d 963, 971 (1943); Republic Nat. Bank & Trust Co. v. Bruce, 130 Tex. 136, 105 S.W.2d 882, 884-85 (1937); Grundy v. Broome, 90 S.W.2d 939, 941-42 (Tex.Civ.App.--Amarillo 1936); Fite v. Brevoort, 90 S.W.2d 913, 914 (Tex.Civ.App.--Fort Worth 1936), rev'd on other grounds, 131 Tex. 523, 115 S.W.2d 1105 (1938). Thus, when an originating instrument does not provide otherwise, the appointment of a successor fiduciary is governed by statute.
29
The Texas Trust Code is codified as Subtitle B of Title 9 of the Texas Property Code. See Tex.Prop.Code Ann. Secs. 111.001-115.017 (Vernon 1984 & Supp.1990). Subsection 113.083(a) of the Texas Trust Code provides:
30
On the death, resignation, incapacity, or removal of a sole or surviving trustee, a successor trustee shall be selected according to the method, if any, prescribed in the trust instrument. If for any reason a successor is not selected under the terms of the trust instrument, a court may and on petition of any interested person shall appoint a successor in whom the trust shall vest.
31
Id. Sec. 113.083(a). Section 115.001 of the Texas Trust Code grants state district courts exclusive jurisdiction over the appointment of trustees. Id. Sec. 115.001. Thus, with respect to the Cowden trusts, Texas law would require that the vacancy resulting from FRB-Midland's insolvency be filled with the appointment of a successor trustee either pursuant to the procedures set forth in the trust instruments or by a state district court judge.
32
The Texas Probate Code provides similar guidelines for the appointment of successor independent executors. Section 154A(a) of the Code provides:
33
If the will of a person who dies testate names an independent executor who, having qualified, fails for any reason to continue to serve, or is removed for cause by the court, and the will does not name a successor independent executor ..., all of the distributees of the decedent as of the filing of the application for an order continuing independent administration may apply to the county court for the appointment of a qualified person, firm, or corporation to serve as successor independent executor. If the county court finds that continued administration of the estate is necessary, the county court shall enter an order continuing independent administration and appointing the person, firm, or corporation designated in the application as successor independent executor, unless the county court finds that it would not be in the best interest of the estate to do so. Such successor shall serve with all of the powers and privileges granted to his predecessor independent executor.
34
Tex.Prob.Code Ann. Sec. 154A(a) (Vernon 1980). Thus, with respect to the B.T. Cowden Estate, Texas law would require that the vacancy in the independent executor position created by FRB-Midland's insolvency be filled with a successor independent executor appointed by a county court upon proper application.
35
FDIC seeks to skirt these state-mandated procedures by means of the P & A Agreement, in which it transferred FRB-Midland's trust business to JRB Bank and authorized JRB Bank to succeed to FRB-Midland's "fiduciary or representative capacities ... to the same extent as though [it] had originally assumed the same." As a result of OCC's approval of the acquisition proposal, NCNB Texas stepped into JRB Bank's shoes. To the extent Texas law controls the appointment of a successor fiduciary, the transfer in the P & A Agreement had no effect and NCNB Texas is without authority to exercise the fiduciary responsibilities. There is clearly a conflict between Texas law relating to the selection of successor fiduciaries and FDIC's actions in attempting to transfer FRB-Midland's fiduciary appointments to NCNB Texas. We must thus determine whether FDIC had authority to transfer the appointments without resort to the procedures required by Texas law.
C.
36
When a federally insured banking institution fails, FDIC, as insurer of the institution's deposits, is obligated to reimburse depositors, within the limits provided by law, for losses they have suffered. FDIC may fulfill this obligation by either of two methods. First, FDIC may simply liquidate the failed bank's assets, pay off insured deposits with the proceeds, and cover any shortfall by drawing on the deposit insurance fund. As other courts have noted, this option is quite disruptive. "Accounts are frozen, checks are returned unpaid, ... depositors may wait months to recover even the insured portion of their funds, and uninsured funds may be irrevocably lost." Gunter v. Hutcheson, 674 F.2d 862, 865 (11th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); see Federal Deposit Ins. Corp. v. Wood, 758 F.2d 156, 160-61 (6th Cir.), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 286 (1985); Federal Deposit Ins. Corp. v. Merchants Nat'l Bank, 725 F.2d 634, 637 (11th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 114, 83 L.Ed.2d 57 (1984). As an alternative, FDIC may in certain circumstances arrange a purchase and assumption transaction, in which another bank "purchases" the failed bank and continues its operations without interruption. The purchase and assumption approach is generally considered to be more desirable than the liquidation option, because "[t]he transaction usually is arranged overnight, so that banking services are not interrupted for a single business day." Wood, 758 F.2d at 160; see Merchants Nat'l Bank, 725 F.2d at 638. Moreover, "[d]epositors receive the full amounts of their deposits, rather than only the insured amounts." Wood, 758 F.2d at 160-61.
37
Notwithstanding its desirability as a practical matter, however, implementation of the purchase and assumption approach has in the past proven to be difficult. As a result of both the obvious need for secrecy regarding the condition of a bank approaching insolvency and the desire to maintain the bank's operations without interruption, purchasing banks have often been unable to get a clear picture of the insolvent bank's financial condition. See Gunter, 674 F.2d at 865. Congress addressed these problems in the Competitive Equality Banking Act of 1987, Pub.L. No. 100-86, Sec. 503, 101 Stat. 552, 629-32, by authorizing FDIC to create "bridge banks." "A 'bridge bank' is a new national bank established by the FDIC to take over the assets and liabilities of a failed bank and to carry on its business for a limited time." S.Rep. No. 19, 100th Cong., 1st Sess. 61, reprinted in 1987 U.S.Code Cong. & Admin.News 489, 551. The purpose of the legislation was to "enable[ ] the FDIC to 'bridge' the gap between the failed bank and a satisfactory purchase-and-assumption or other transaction that cannot be accomplished at the time of failure." Id. at 60, reprinted in 1987 U.S.Code Cong. & Admin.News at 550.
38
FDIC and NCNB Texas rely primarily on the provisions of this bridge bank legislation to support their pre-emption argument. At the time the transfers that provoked this litigation took place, the statute provided in part:
39
(1) Establishment. When an insured bank is closed, the Corporation, in the Corporation's discretion ..., may establish a bridge bank to--
40
(A) assume the deposits of the closed bank;
41
(B) assume such other liabilities of the closed bank as the Corporation, in the Corporation's discretion, may determine to be appropriate;
42
(C) purchase such assets of the closed bank as the Corporation, in the Corporation's discretion, may determine to be appropriate; and
43
(D) perform any other temporary function which the Corporation may prescribe in accordance with this Act.
44
....
45
(3) Transfer of assets and liabilities.
46
(A) In general. Upon the organization of a bridge bank pursuant to this subsection, the Corporation, as receiver, or any other receiver appointed with respect to the closed insured bank may, subject to the approval of any such transfer by a court of competent jurisdiction, transfer any assets and liabilities of the closed insured bank to the bridge bank.
47
....
48
12 U.S.C. Sec. 1821(i) (current version at 12 U.S.C. Sec. 1821(n)). The Federal Deposit Insurance Act (FDIA) defined "deposit" to include "trust funds ... received or held by [a] bank, whether held in the trust department or held or deposited in any other department of such bank." Id. Sec. 1813(l )(2) (amended 1989). The FDIA further defined "trust funds" as "funds held by an insured bank in a fiduciary capacity and includ[ing], without being limited to, funds held as trustee, executor, administrator, guardian, or agent." Id. Sec. 1813(p) (amended 1989). Thus, we have no hesitation in concluding that in granting FDIC authority to transfer "deposits" of the failed bank to the newly created bridge bank section 1821(i) authorized FDIC to transfer the assets subject to the Cowden trusts and estate. This is simply the beginning of our analysis, however, because we must next determine whether FDIC also had authority to transfer the bank's fiduciary appointments. Although it seems highly unlikely Congress would intend to permit the transfer of the holdings but not the transfer of the accompanying oversight responsibilities, on its face the statute does not explicitly authorize the latter action.
49
The Cowdens initially argue that, absent an explicit direction from Congress indicating an intent to permit the transfer of fiduciary appointments, the bridge bank statute should not be construed as pre-empting state laws regulating such transfers. In support of this position, they point to 12 U.S.C. section 215(e), which deals with the consolidation of national banks and provides explicitly that the consolidated banks are authorized to continue in the fiduciary capacities previously exercised without resort to any appointment procedures.7 Based on this provision, the Cowdens argue "that Congress knew how to 'directly' and 'actually' pre-empt state law so as to allow fiduciary appointments and interests to be transferred" and that absent similarly explicit language the intent to pre-empt obviously was absent.
50
This line of reasoning fails to focus on the proper issue. It is true that in section 215(e) Congress did directly pre-empt any conflicting state laws regulating the appointment of successor fiduciaries. The present case differs, however, in that it was FDIC's attempt to transfer the fiduciary appointments through the P & A Agreement and not the bridge bank statute itself that created the conflict with state law. As was noted above, when it is an agency action that is in conflict with state law, the validity of the agency action does not depend on express congressional authorization to displace the state law. The Supreme Court thus has "emphasized that in a situation where state law is claimed to be pre-empted by federal regulation, a 'narrow focus on Congress' intent to supersede state law [is] misdirected.' " City of New York, 486 U.S. at 64, 108 S.Ct. at 1642, 100 L.Ed.2d 48 (quoting De la Cuesta, 458 U.S. at 154, 102 S.Ct. at 3023, 73 L.Ed.2d 664). Rather, "the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action." Id. at 64, 108 S.Ct. at 1642, 100 L.Ed.2d 48. Certainly, when it enacted the bridge bank statute Congress could have explicitly required the transfer of fiduciary appointments or explicitly authorized FDIC to make such transfers. That Congress did not do so is not dispositive, however. The issue is whether the authority to make the transfers is within the scope of the authority Congress granted FDIC in the bridge bank statute. We turn to that issue now.
51
FDIC and NCNB Texas argue that the authority to transfer FRB-Midland's fiduciary appointments was provided in those provisions permitting FDIC to transfer "any assets" of the closed bank and permitting the bridge bank to "purchase such assets of the closed bank as the Corporation ... may determine to be appropriate." The FDIA provides no definition of "assets," however, and the Cowdens contend that a definition that would encompass fiduciary appointments is unjustified. The Cowdens rely on a federal district court decision in which it was noted that "[a]ssets are generally defined as property of any kind, whether real or personal, tangible or intangible, legal or equitable, which can be made available for the payment of debts." Harris v. United States, 431 F.Supp. 1173, 1178 (E.D.Va.1977). They contend that because fiduciary appointments are generally not transferrable, the appointments cannot be made available to pay debts and thus are not assets. The Cowdens also point to the handling of fiduciary appointments on banks' financial statements. The Agreed Statement of Facts indicated the following:
52
Neither the trust department nor the assets of the individual trusts administered by First RepublicBank Midland were ever reported by that bank to regulatory agencies, or included in published statements of condition, as "assets" of First RepublicBank Midland. Banks do not report on their statements of condition their trust departments and/or the assets they hold in trust as being "assets" of the bank. However, not all of a bank's assets are shown separately on its statement of condition. The income generated by a trust department is reported on the bank's income and expense statement and reflected on the bank's statement of condition as cash.
53
Agreed Statement of Facts, supra, at 8-9.
54
In response to the Cowdens' objections in the court below, NCNB Texas submitted the affidavit of Stanley Scott, a certified public accountant, who stated that in his "professional opinion the fiduciary appointments held by First RepublicBank Midland prior to its failure unquestionably were assets of that bank." Affidavit of Stanley J. Scott at 4, NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249 (W.D.Tex.1989). In support of his opinion, Scott referred to accounting principles that suggest an asset has three primary characteristics:
55
"(a) it embodies a probable future benefit that involves a capacity, singly or in combination with other assets, to contribute directly or indirectly to future net cash inflows,
56
(b) a particular entity can obtain the benefit and control others' access to it, and
57
(c) the transaction or other event giving rise to the entity's right to or control of the benefit has already occurred."
58
Id. (quoting Financial Accounting Standards Board, Statement of Financial Accounting Concepts No. 6, p 26). Scott indicated that whether a particular interest is included on a business' balance sheet is not determinative of its status as an asset. Id. at 5. There was also evidence in the district court that NCNB Texas receives commissions and fees from the fiduciary appointments totalling approximately $100 million annually. See NCNB Texas' Response to Cowdens' First Request for Discovery at 5, NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249 (W.D.Tex.1989). With respect to the FRB-Midland appointments, NCNB Texas indicated that in 1987 the fiduciary appointments generated income of $2.7 million. See Objections and Responses of Federal Deposit Insurance Corporation as Receiver of First RepublicBank Midland, N.A. to Defendants' First Request for Discovery at 4, NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249 (W.D.Tex.1989). This evidence and the breadth of the statutory language resulted in the district court's refusal to interpret "asset" "in a manner which would read out of the statute trust relationships. Such a finding would require adding the words 'balance sheet' or 'tangible' into the statute and speculat[ion] about Congress' intent as to the meaning of 'asset' when the statute itself is unambiguous." NCNB Texas Nat'l Bank, 712 F.Supp. at 1255 n. 12.
59
We agree with the district court's conclusion for several reasons. First, as noted above, we think it highly unlikely Congress would intend to authorize the transfer of trust and estate holdings but not the transfer of the appointments and accompanying oversight and managerial responsibilities. Second, it is not inconceivable that a fiduciary appointment could reasonably be considered an asset. The decision of banks in general and FRB-Midland in particular not to include trust departments as assets on their financial statements is not determinative of the status of fiduciary positions. Indeed, an interpretation of "asset" that encompasses a bank's fiduciary appointments is consistent with the accounting principles mentioned above, in that the fiduciary positions generate substantial amounts of income for the bank each year and other banking institutions may not gain access to that source of income without resort to legal proceedings. Third, federal courts have in a related context approved regulatory authorities' transfers of rights held by failed banking institutions that would not have been transferrable under state law. See Federal Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 267-68 (E.D.Cal.1987) (holding authority to transfer "every asset" of failed bank includes authority to transfer choses in action not assignable under state law); Federal Deposit Ins. Corp. v. Abraham, 439 F.Supp. 1150, 1151-52 (E.D.La.1977) (same); Federal Sav. & Loan Ins. Corp. v. Fielding, 309 F.Supp. 1146, 1151 (D.Nev.1969) (same), cert. denied, 400 U.S. 1009, 91 S.Ct. 567, 27 L.Ed.2d 621 (1971); Federal Deposit Ins. Corp. v. Rectenwall, 97 F.Supp. 273, 274-75 (N.D.Ind.1951) (same). Therefore, even if the classification of an interest as an asset turns on an entity's authority to transfer the interest, FRB-Midland's lack of authority under state law to transfer its fiduciary appointments to another institution does not foreclose the possibility that the appointments could be transferrable and thus be classified as assets when FDIC acts as receiver of an insolvent bank. Finally, the language and history of the bridge bank statute makes clear that Congress intended FDIC, when acting as receiver, to be able to transfer all aspects of a failed banking institution's operations to the newly created bridge bank. This is in fact one of the very purposes of granting FDIC authority to enter into purchase and assumption transactions. The fiduciary responsibilities carried out by a bank's trust department, though not indispensable to the successful operation of the bank, are certainly a substantial and important part of a bank's everyday activities. Including fiduciary appointments within the meaning of "asset" is thus consistent with the congressional goal of maintaining the operations of a failed bank. Any other conclusion would have resulted in vacancies on July 29, 1988, in each of the approximately twenty-seven thousand fiduciary positions held by FRBC institutions.
60
We find additional support for our holding in recent amendments to the bridge bank statute. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73, 1989 U.S.Code Cong. & Admin.News (103 Stat.) 183, amended substantial portions of the FDIA. As amended, the bridge bank provisions affirm the authority of FDIC to transfer the assets and liabilities of a failed bank, see 12 U.S.C. Sec. 1821(n)(3)(A)(i), and indicate that "the trust business, including fiduciary appointments, of any insured bank in default is included among its assets and liabilities," id. Sec. 1821(n)(3)(A)(iii). Similarly, the statute provides that the newly created bridge bank may "purchase such assets (including assets associated with any trust business)" of the failed bank that FDIC considers appropriate to transfer. Id. Sec. 1821(n)(1)(B)(iii). This language suggests that fiduciary appointments may have been one type of obligation Congress thought FDIC should be able to transfer to a bridge bank under the authority provided by the statute's previous wording. The Cowdens urge us to draw a contrary conclusion, contending that the addition of the language demonstrates the lack of authority to make such a transfer under the statute as it read in 1988. We disagree.
61
A number of courts have recognized that "changes in statutory language need not ipso facto constitute a change in meaning or effect." United States v. Montgomery County, Md., 761 F.2d 998, 1003 (4th Cir.1985); see Phillips Petroleum Co. v. United States Envtl. Protection Agency, 803 F.2d 545, 557-58 (10th Cir.1986); Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir.1984); Brown v. Marquette Sav. & Loan Ass'n, 686 F.2d 608, 615 (7th Cir.1982); United States v. Tapert, 625 F.2d 111, 121 (6th Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980), 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980), 449 U.S. 1034, 101 S.Ct. 610, 66 L.Ed.2d 496 (1980). Indeed, a legislative body may amend statutory language "to make what was intended all along even more unmistakably clear." Montgomery County, Md., 761 F.2d at 1003; see Tapert, 625 F.2d at 121 (indicating that "[i]t is a common and customary legislative procedure to enact amendments strengthening and clarifying existing laws"). We realize that reliance on subsequent legislative actions to determine the meaning of an earlier statute is hazardous. See Brown, 686 F.2d at 615. Nevertheless, several considerations lead us to conclude that the FIRREA amendments to the bridge bank statute support our holding concerning the scope of the term "asset."
62
We note initially that although the current language is certainly more explicit in its grant of authority to FDIC, it cannot be read as foreclosing a reading of the previous language that would include fiduciary appointments within the meaning of "asset." In addition, our review of the legislative history discussing the amendments reveals no indication on the part of Congress that it intended to increase FDIC authority with respect to transfer of interests held by insolvent banking institutions. What little legislative history there is suggests Congress was primarily concerned with clarifying existing law.8 The absence of dispositive legislative history in itself counsels against a conclusion that Congress intended to change the law. See id. at 615 (suggesting that in the absence of an indication "that the new statute was intended to change the law, the new language is persuasive authority of the proper construction of the original" statute). Finally, we are quite aware that by the time FIRREA was enacted this dispute had been litigated through the district court and was pending before this court on appeal. Other courts have noted that the existence of a dispute in the courts, such as a circuit split, may suggest that Congress was provoked to enact an amendment to clarify rather than change the law. See Montgomery County, Md., 761 F.2d at 1003; Callejas, 750 F.2d at 731; Brown, 686 F.2d at 615. We think this same principle applies in this situation. Given that this litigation apparently was necessary to resolve the very important issue of the scope of FDIC authority, it is quite likely Congress felt a need to clarify the law to avoid any future disputes. Individually, these considerations might not justify any conclusion as to Congress' intent. Taken together, however, these factors in conjunction with our review of the previous and amended versions of the bridge bank provisions lead us to conclude that in making explicit FDIC's authority to transfer fiduciary appointments Congress was clarifying its intent rather than expanding the scope of FDIC authority. We thus hold that FRB-Midland's fiduciary appointments were assets of the bank within the meaning of the bridge bank statute and that FDIC could transfer those appointments through the P & A Agreement.
63
The bridge bank provisions of the FDIA granted FDIC broad discretion to alleviate the potential disruption of banking services resulting from bank failures. The preceding analysis indicates that the authority to transfer the fiduciary appointments of an insolvent bank to a federally created bridge bank was included within this grant. To the extent state law regulating the transfer of fiduciary appointments conflicted with this authority, it was pre-empted. Thus, as a result of the P & A Agreement, NCNB Texas succeeded as a matter of federal law to the fiduciary appointments previously held by FRB-Midland. Thereafter, NCNB Texas was legally entitled to fulfill the responsibilities accompanying the appointments, including the distribution under proper circumstances of the holdings of the Cowden trusts.9
D.
64
Having determined that the bridge bank statute authorized FDIC to transfer fiduciary appointments, we briefly consider the extent to which state law regulating such appointments is pre-empted.10 The analysis presented above indicates that FDIC's authority to transfer an insolvent bank's fiduciary appointments is based on federal law and is not limited by either state laws regulating the transfer of such appointments or the language in the originating document. Thus, assuming the originally designated fiduciary is a bank that becomes insolvent, notwithstanding any language in the trust agreement (or will) designating a successor trustee (or successor executor) to serve should the designated trustee (or executor) become insolvent, FDIC has authority to transfer the appointment to a bridge bank. The obvious issue raised by this scenario is whether there is any limit to the pre-emption of state law that would permit the beneficiaries of a trust or will or the entity designated in an instrument as an alternate fiduciary subsequently to obtain a transfer of the fiduciary appointment from the bridge bank.
65
The Cowdens suggest the pre-emptive effect of FDIC authority should be limited by our finding the bridge bank to be a "temporary" successor fiduciary. Under this approach, FDIC could transfer the appointments as permitted by the statute. However, if a provision in the originating instrument either designated or provided for the selection of a successor trustee, that provision would remain viable and a state court action could be brought to enforce it. The Cowdens also suggest that there should be a "window" of time following transfer of the appointments during which interested parties could bring an action with respect to any of the transferred appointments to obtain the appointment of a different successor fiduciary to serve permanently. The bridge bank could participate in the proceeding, but its entitlement to retain the appointment would not be presumed and the challenging party would not be required to show cause to justify designation of an alternative successor fiduciary. The Cowdens argue that this approach would accommodate both federal and state interests. The federal government's goal of maintaining banking services would be met because the bridge bank would serve as an interim fiduciary while parties decided on their course of action. It is likely that in most cases interested parties would simply accept the bridge bank as the successor fiduciary and the bank would carry out those responsibilities without any need for additional court action. Such an approach also would not unnecessarily interfere with state laws regulating the appointment of successor fiduciaries or with interested parties' expectations with regard to who will serve as fiduciary.
66
There is much to commend such an approach, and we have no doubt that FDIC could establish such procedures through the adoption of regulations. A review of the bridge bank statute, however, reveals no basis for requiring such a temporary appointment procedure. It is relatively clear that in enacting that legislation Congress intended to permit FDIC to establish a bank that would in essence be the mirror image, though undoubtedly with more profitable banking practices, of the insolvent institution. That is, the bridge bank is to continue banking operations to the same extent and with the same authority as the failed bank. FDIC has authority to accomplish this result through the transfer of fiduciary appointments, and nothing in the statute establishes a limit on a bridge bank's authority to retain such appointments. Accordingly, there is no basis on which to justify the imposition of a temporary fiduciary approach.
67
This does not mean that a bridge bank that succeeds to the fiduciary appointments of an insolvent bank may never be subject to removal. What it does mean is that the tenure of the bridge bank is governed by state law. Once the transfer of appointments is complete, the bridge bank is treated as any other fiduciary under state law and it may be removed from office for the same reasons. Under current Texas law, the removal of trustees is governed by section 113.082 of the Texas Trust Act.11 The removal of executors and administrators is governed by various provisions in the Texas Probate Code.12 We express no opinion as to the proper interpretation of those removal provisions other than to state that it appears unlikely that they would support removal of a bridge bank as fiduciary simply because the originating instrument designated an alternate fiduciary or set forth a procedure for selecting an alternate fiduciary. However, should state legislatures consider the designation of a fiduciary of choice sufficiently important, our decision should not be read as prohibiting the amendment of removal statutes to provide greater freedom in the replacement of fiduciaries. Of course, any such statute may not be aimed solely at bridge banks, for it has been established at least since McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), that states may not enact laws that discriminate against national banks. Thus, any modification of removal statutes should apply generally to withstand constitutional scrutiny.
68
It seems likely that most states will simply accept the consequences of FDIC's transfer authority. The pre-emption that results is indeed narrow. It affects only the appointment of successor fiduciaries when FDIC determines a purchase and assumption transaction is appropriate to continue the operations of an insolvent banking institution. In all other respects, state regulation of fiduciaries is unaffected. In the end, the benefits of continuous banking service, including the continuous service of a knowledgeable fiduciary, that result from the pre-emption clearly will outweigh the infringement on state interests.
69
The judgment of the district court is AFFIRMED.
1
As explained below 12 U.S.C. Sec. 1821(n) as enacted by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 made explicit what the statute in 1988 implicitly authorized
2
The Board of Directors of FDIC previously had determined that continued operation of the FRBC institutions was essential to maintain adequate banking services in the communities where the banks were located and was in the best interest of the banks' depositors and the public. In accordance with these findings, FDIC, on July 27, 1988, had chartered JRB Bank so that it could take over the operations of the FRBC institutions. See Agreed Statement of Facts at 2-3, NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249 (W.D.Tex.1989) (No. MO-88-CA-301) [hereinafter "Agreed Statement of Facts"]
3
Recognizing the possibility that one or more of the FRBC institutions would fail, FDIC began soliciting acquisition proposals several weeks prior to the insolvency declarations. NCNB Corporation submitted the winning proposal. As was contemplated by this proposal, NCNB Texas Bancorporation, Inc., a subsidiary of NCNB Corporation, made a $210 million equity investment in the bridge bank and acquired all two million shares of common stock with voting rights, representing a twenty percent ownership interest in the bridge bank. NCNB Texas Bancorporation obtained the right to acquire the remaining ownership interest during the succeeding five years. See Agreed Statement of Facts, supra, at 6-7
4
The assets of these estates and trusts were valued at approximately $430 million
5
The court's judgment dealt explicitly only with the appointment of NCNB Texas as successor trustee of the Cowden trusts. Earlier in its opinion, however, the court had noted that the Cowdens were challenging NCNB Texas' status as the successor independent executor of the B.T. Cowden Estate and had held that "the same principles control the application of federal law with respect to the trustee and executor successorship." NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249, 1252 n. 6 (W.D.Tex.1989)
6
This estimate was given by Robert McKenzie, the Executive Vice President of Trust and Investment Services for NCNB Texas, and was based in part on events following the failure of the First National Bank of Midland ("First National Midland"). FDIC declared First National Midland insolvent in October of 1983 and subsequently entered into a purchase and assumption agreement with RepublicBank First National Midland ("RepublicBank Midland"), which later changed its name to First RepublicBank Midland and is the insolvent institution involved in this case. Section 10.1 of that agreement contained provisions relating to the transfer of fiduciary appointments similar to those in section 4.7 of the P & A Agreement at issue in this proceeding. The agreement, as was the P & A Agreement, was approved by the United States District Court for the Western District of Texas. Rather than relying on the agreement as authority to operate as successor fiduciary, however, RepublicBank Midland instituted numerous lawsuits in state court to secure appointment as successor trustee and executor of individual trusts and estates. McKenzie estimated that RepublicBank Midland expended approximately $390,000 on this litigation, which took two and one-half years to complete. See Affidavit of Robert G. McKenzie, February 2, 1989, NCNB Texas Nat'l Bank v. Cowden, 712 F.Supp. 1249 (W.D.Tex.1989); see also Agreed Statement of Facts, supra, at 15-17
7
Section 215(e) provides in part:
The consolidated national banking association, upon the consolidation and without any order or other action on the part of any court or otherwise, shall hold and enjoy all rights of property, franchises, and interests, including appointments, designations, and nominations, and all other rights and interests as trustee, executor, administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver, and committee of estates of lunatics, and in every other fiduciary capacity, in the same manner and to the same extent as such rights, franchises, and interests were held or enjoyed by any one of the consolidating banks or banking associations at the time of consolidation, subject to the conditions hereinafter provided.
8
In discussing the amendments to FDIC's authority as receiver, the House Report indicates that "[t]he authorities essentially parallel those heretofore exercised by ... the FDIC, ... are designed to give the FDIC power to take all actions necessary to resolve the problems posed by a financial institution in default," and include authority "to transfer assets or liabilities of the financial institution, including those associated with any trust business carried on by the institution, without any further approvals." H.R.Rep. No. 54, 101st Cong., 1st Sess., pt. I, at 330-31, reprinted in 1989 U.S.Code Cong. & Admin.News 86, 126-27. In discussing the statute's bridge bank provisions specifically, the Report suggests that FIRREA "make[s] technical changes in the new bank and bridge bank provisions" and "clear[s] up some of the subsections' ambiguities." Id. at 333, reprinted in 1989 U.S.Code Cong. & Admin.News at 129. The House Conference Report provides even less guidance. In discussing substantive changes made to the bridge bank provisions, however, it omits any reference to the authority to transfer fiduciary appointments. See H.R.Conf.Rep. No. 222, 101st Cong., 1st Sess. 396-98, reprinted in 1989 U.S.Code Cong. & Admin.News 432, 435-37
9
Our interpretation of the bridge bank statute forecloses any need to consider either the alternative rationale for the district court's holding or FDIC's and NCNB Texas' arguments concerning the development of federal common law
10
During oral argument we urged counsel to submit additional comments addressing the propriety of a federal rule that would preserve for a beneficiary the ability to change fiduciaries following an FDIC transfer of an insolvent bank's fiduciary appointments to a bridge bank. Counsel for each party has submitted written comments responsive to our request, and we have considered their arguments and suggestions in reaching the conclusions set forth herein
11
Section 113.082 provides:
(a) A trustee may be removed in accordance with the terms of the trust instrument, or, on the petition of an interested person and after hearing, a court may remove a trustee and deny part or all of the trustee's compensation if:
(1) the trustee materially violated or attempted to violate the terms of the trust and the violation or attempted violation results in a material financial loss to the trust;
(2) the trustee becomes incompetent or insolvent; or
(3) in the discretion of the court, for other cause.
(b) A beneficiary, cotrustee, or successor trustee may treat a violation resulting in removal as a breach of trust.
Tex.Prop.Code Ann. Sec. 113.082 (Vernon 1984).
12
For example, an independent executor may be removed in accordance with section 149C, which provides in part:
(a) The county court, a statutory probate court, a county court at law with probate jurisdiction, or a district court of the county, on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place fixed in the notice, may remove an independent executor when:
(1) the independent executor fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge;
(2) sufficient grounds appear to support belief that he has misapplied or embezzled, or that he is about to misapply or embezzle, all or any part of the property committed to his care;
(3) he fails to make an accounting which is required by law to be made;
(4) he fails to timely file the notice required by Section 128A of this code;
(5) he is proved to have been guilty of gross misconduct or gross mismanagement in the performance of his duties; or
(6) he becomes an incompetent, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing his fiduciary duties.
Tex.Prob.Code Ann. Sec. 149C (Vernon Supp.1990).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10696
Conference Calendar
DARRYL WALLACE,
Plaintiff-Appellant,
versus
THOMAS WINDHAM, Fort Worth Chief of Police;
DAVID WILLIAMS, Tarrant County Sheriff,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-585-Y
--------------------
October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Darryl Wallace (TDCJ # 636243) appeals the district court’s
dismissal of his pro se and in forma pauperis (IFP) civil rights
complaint as frivolous pursuant to 28 U.S.C. § 1915. Wallace
does not, however, refer to the district court’s judgment, and he
does not allege any error that the district court made in
disposing of his complaint.
An appellant’s brief must contain an argument on the issues
that are raised so that this court may know what action of the
*
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. 00-10696
-2-
district court is being complained of. Al-Ra’id v. Ingle, 69
F.3d 28, 31 (5th Cir. 1995). There is no exemption for pro se
litigants, though we construe their briefs liberally. Id.
Because Wallace has neither briefed nor identified any error in
the dismissal of his complaint, the judgment of the district
court is AFFIRMED.
AFFIRMED.
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Electronically Filed
Supreme Court
SCWC-30509
19-SEP-2014
02:26 PM
SCWC-30509
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
THE MALULANI GROUP, LIMITED, fka MAGOON BROTHERS, LTD.,
a Hawai'i corporation, Respondent/Plaintiff-Appellant,
vs.
KAUPO RANCH, LTD., a Hawai'i corporation,
Petitioner/Defendant-Appellee,
and
HEIRS AND/OR DEVISEES OF HAMOLE AKA MARIA HAMOLE, et al.,
Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30509; CIV. NO. 08-1-0501(3))
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellee Kaupo Ranch, Ltd.’s
application for writ of certiorari filed on August 4, 2014, is
hereby accepted.
IT IS FURTHER ORDERED that no oral argument will be
heard in this case. Any party may, within ten days and pursuant
to Rule 34(c) of the Hawai'i Rules of Appellate Procedure, move
for retention of oral argument.
DATED: Honolulu, Hawai'i, September 19, 2014.
Brian R. Jenkins /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
2
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101 F.3d 710
Kapplerv.West***
NO. 96-8274
United States Court of Appeals,Eleventh Circuit.
Nov 06, 1996
Appeal From: S.D.Ga., No. 95-00106-CV-1
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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722 S.W.2d 266 (1987)
291 Ark. 4
Anthony F. MANN, Eldon Ray Cobb, Joseph M. Miner, Ronald Dale Harden & Doyle Jones, Appellants,
v.
STATE of Arkansas, Appellee.
No. CR 86-77.
Supreme Court of Arkansas.
January 12, 1987.
*267 John Wm. Murphy, Fayetteville, Thomas E. Brown, Pine Bluff, for appellants.
Steve Clark, Atty. Gen. by Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.
HICKMAN, Justice.
The appellants, Anthony F. Mann, Eldon Ray Cobb, Joseph M. Miner, Ronald Dale Harden, and Doyle Jones, all inmates of Tucker Maximum Security Unit of the Arkansas Department of Correction, were charged by a felony information with second degree battery. The information alleged that the appellants struck George Staffney, a prison guard, in the face and chest, kicked him in the back, and stomped his arm during an incident which occurred one night at the prison. They were found guilty and sentenced as habitual offenders. Mann received a ten year sentence; Cobb received an eight year sentence; Miner and Harden received six year sentences; and Jones received a 12 year sentence.
The appellants raise seven points for reversal: (1) the second degree battery statutory provision, Ark.Stat.Ann. § 41-1602(1)(d)(iv) (Supp.1985), is vague and therefore unconstitutional; (2) the sentence imposed upon each appellant is cruel and unusual punishment; (3) the trial court did not allow counsel an adequate opportunity to investigate previous convictions; (4) the in-court identification of the appellants was based upon a tainted out-of-court identification; (5) Harden's and Miner's sentences should be reduced because their prior felony conviction records only showed one previous conviction indicating representation by counsel; (6) the trial court erred in denying the appellants' motion for a continuance; and (7) there was insufficient evidence to convict the appellants.
We will not consider the first five arguments raised by the appellants, because they were not raised at trial. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). The remaining two arguments are without merit, and we affirm the trial court's ruling.
At approximately 10 p.m. on November 18, 1984, George Staffney was attacked by several inmates while patrolling the maximum security unit. This was the second attack on Staffney that evening. Certain inmates began lining up against a wall and whispering to each other while on a break. Staffney went to investigate and told another guard, David Price, to stay behind in case there was trouble. While trying to break up the group, Staffney was attacked, hit in the face with a fist and his night stick, kicked, and his arms stomped. He blacked out for a short period of time. Other officers responded to break up the attack. Later that evening, Staffney positively identified the five appellants as those who attacked him, and he testified as to what each appellant had specifically done to him that night. He also identified the appellants the day after the attack and later at a photo line-up.
Four days before trial, the state filed an amended information, alleging the appellants were habitual offenders, stating that it forgot to assert this statute in the original information. The appellants asked for a continuance, but it was denied. On appeal they concede they were not surprised but argue the denial of the continuance was prejudicial. The record indicates that the state gave the appellants' counsel its *268 file which contained a "rap sheet" showing the prior convictions of each appellant.
The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court's ruling will be reversed only if there is an abuse of discretion. Stone v. State, supra; Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). The burden is on the appellants to show there has been an abuse of discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). The appellants must also make a showing of prejudice before we will consider the trial court's denial of a continuance as an abuse of discretion which requires reversal. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Here, the appellants' counsel had knowledge of prior convictions and were not surprised when the amended information was filed. The amended information did not change either the nature or the degree of the crime. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Finch v. State, supra. Appellants have demonstrated no prejudice and we find no abuse of discretion.
The appellants also argue there was insufficient evidence to convict them. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion beyond suspicion or conjecture, and on review it is only necessary to view the evidence which is most favorable to the appellee. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986); Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986); Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).
Staffney positively identified the appellants as his attackers and specifically described the facts surrounding the attack and the injuries he suffered. Other witnesses corroborated his testimony. On the other hand, the appellants denied their involvement. There was some confusion in the out-of-court identification process, but appellants did not object at trial to the admission of the identification evidence. Therefore, we have a case of disputed facts. We do not attempt to weigh the evidence or pass on the credibility of witnesses where testimony conflictsthat is left to the trier of fact. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983). The evidence here was sufficient to support the verdict.
Affirmed.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1455
In Re: TITO LEMONT KNOX,
Petitioner.
On Petition for Writ of Mandamus. (9:07-cv-01792-HMH-GCK)
Submitted: July 8, 2008 Decided: August 5, 2008
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Tito Lemont Knox, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tito Lemont Knox petitions for a writ of mandamus,
alleging the district court has unduly delayed acting on his
petition filed under 28 U.S.C. § 2241 (2000). He seeks an order
from this court directing the district court to act. Our review of
the docket sheet reveals that the district court accepted the
magistrate judge’s recommendation and dismissed Knox’s § 2241
petition. Accordingly, because the district court recently has
decided Knox’s case, we deny the mandamus petition as moot. We
grant leave to proceed in forma pauperis. 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.
PETITION DENIED
- 2 -
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0214n.06
Filed: March 28, 2006
05-5116
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
GARY ALLEN BLANTON, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: DAUGHTREY and GILMAN, Circuit Judges, and RUSSELL,* District Judge.
PER CURIAM. The defendant, Gary Allen Blanton, appeals from the imposition of
a 151-month prison sentence following his guilty plea to the charge of bank robbery. He
contends that the district court erred in subjecting him to increased punishment as a career
offender based upon two prior felony convictions for burglary. At the sentencing hearing,
however, the defendant expressly conceded that the crimes used to enhance his sentence
were “crimes of violence.” As a result, we hold that this issue has been waived, and we
affirm the district court’s sentencing order.
*
The Hon. Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
05-5116
United States v. Blanton
The defendant pleaded guilty to a single-count indictment charging him with taking
approximately $13,000 by force, violence, and intimidation from a federally insured bank.
As part of a plea agreement, the defendant and the government stipulated that the proper
base offense level for the crime of conviction under the appropriate sentencing guideline
was 20. The plea agreement, however, explicitly provided that “[n]o agreement exists
about the Defendant’s criminal history category pursuant to U.S.S.G. Chapter 4.”
Furthermore, although the defendant explicitly waived his right to appeal the conviction or
the sentence or to attack the guilty plea collaterally, the government conceded in open
court that any issue concerning Blanton’s potential career-offender status “would be an
issue that would be appropriate to not include in the waiver.”
In preparing its pre-sentence report for the district court, the probation office noted
that Blanton had previously been convicted of burglaries of dwellings in January 1989 in
Kentucky, and May 1991 in Virginia. Because those convictions were for “crimes of
violence,” as that term is defined in § 4B1.2 of the 2003 United States Sentencing
Guidelines Manual, the report recommended that the defendant be sentenced as a career
offender. See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(b) (2003). As a result, instead
of a sentence of 63-78 months as an offense level 20, criminal history category V offender,
Blanton was subject to a sentence of 151-188 months as an offense level 29, criminal
history category VI offender.
-2-
05-5116
United States v. Blanton
At the sentencing hearing, the district judge concurred with the probation office’s
assessment and ruled that the two burglary convictions were in fact “crimes of violence.”
See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2) (2003). Furthermore, the court ruled
that even though the Kentucky conviction was imposed more than 15 years before the
commission of the February 2004 bank robbery, that earlier conviction could still be used
to support a career-offender designation because the defendant’s parole status following
his release had been revoked and he had actually served additional prison time within the
15-year period immediately preceding the commission of the bank robbery. See U.S.
SENTENCING GUIDELINES MANUAL § 4A1.2(e)(1) (2003). Having reached those conclusions,
the district judge sentenced Blanton as a career offender to the minimum 151-month
sentence provided by the applicable guideline range.
In his appellate brief, the defendant raises only a single issue – whether the district
court properly considered the 1991 Virginia conviction to be a “crime of violence” for
purposes of determining the proper sentencing range under the guidelines. During the
sentencing hearing, however, the defendant’s attorney challenged only whether the 1989
Kentucky conviction was within the time frame applicable to the career-offender
determination. Indeed, defense counsel at sentencing specifically conceded that both of
Blanton’s prior burglary convictions “would otherwise qualify as crimes of violence for
purposes of the guidelines.”
-3-
05-5116
United States v. Blanton
In United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990), we noted that “[a]n
attorney cannot agree in open court with a judge’s proposed course of conduct and then
charge the court with error in following that course.” Blanton has thus waived any objection
he might have to the district judge’s determination that the Virginia burglary conviction
should be considered, for guidelines purposes, a prior conviction for a “crime of violence.”
The judgment of the district court is AFFIRMED.
-4-
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682 F.2d 1227
WESTERN TRANSPORTATION COMPANY, Plaintiff-Appellant,v.WILSON AND COMPANY, INC. and Wilson Foods Corporation,Defendants-Appellees.
No. 82-1053.
United States Court of Appeals, Seventh Circuit.
Argued June 4, 1982.Decided July 12, 1982.
Steven C. Weiss, Chicago, Ill., for plaintiff-appellant.
David L. Schiavone, Chicago, Ill., for defendants-appellees.
Before POSNER and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge.*
POSNER, Circuit Judge.
1
A common carrier regulated by the Interstate Commerce Commission may not receive a different compensation for its services from the rate specified in the applicable tariff, 49 U.S.C. § 10761(a), and if by mistake it charges a lower rate it may sue under 28 U.S.C. § 1337 to recover the undercharge. E.g., Madler v. Artoe, 494 F.2d 323 (7th Cir. 1974). The carrier's right to recover is quite unaffected by the usual limitations on contract actions based on mistake. "The shipment being an interstate one, the freight rate was that stated in the tariff filed with the Interstate Commerce Commission. The amount of the freight charges legally payable was determined by applying this tariff rate ... (and) thus, they were fixed by law. No contract of the carrier could reduce the amount legally payable; or release from liability a shipper who had assumed an obligation to pay the charges. Nor could any act or omission of the carrier (except the running of the statute of limitations) estop or preclude it from enforcing payment of the full amount by a person liable therefor." Louisville & Nashville R.R. v. Central Iron & Coal Co., 265 U.S. 59, 65, 44 S.Ct. 441, 442, 63 L.Ed. 900 (1924); see also Fry Trucking Co. v. Shenandoah Quarry, Inc., 628 F.2d 1360, 1361 (D.C.Cir.1980).
2
This is a harsh rule. Courts strain against it. A favorite device is to find that a tariff is ambiguous and then interpret it to reach a result that the court considers just. That is what the district court did in this case. The plaintiff, Western Transportation Company, is a motor common carrier regulated by the ICC. It went bankrupt, and in connection with its bankruptcy hired a consulting firm to comb through its invoices looking for undercharges-with results that are showing up with increasing frequency in the Federal Reporter. See, e.g., Western Transp. Co. v. Webster City Iron & Metal Co., 657 F.2d 116 (7th Cir. 1981). The defendants in this case, affiliated corporations that we shall refer to as Wilson, had between 1976 and 1978 shipped meats on Western under a tariff applicable "only when the shipment is loaded into or onto the truck by the shipper and unloaded therefrom by the consignee." There is no dispute that Wilson and its consignees complied fully with this requirement, but the tariff also provides that "the Bill of Lading and Shipping Order covering the shipment must contain a notation that cosignor is to load and/or consignee is to unload the shipment, as the case may be," and on a number of shipments the required notation was missing. Western is seeking in this action the difference between what it charged under this tariff and what it would have charged under the different tariff that would have been applicable if this one was not: about $124,000.
3
The district court held that the tariff was ambiguous because it allows the carrier to charge a higher rate if the shipper and consignee do not load and unload, even if the bill of lading notes that they intend to do so, but affords no "reciprocal opportunity for Wilson to look beyond the notation requirement" and pay the lower rate if it loads (and its consignee unloads) but fails to include the required notation in the bill of lading. Interpreting the tariff, the court concluded that the draftsmen would probably have wanted Wilson to get the lower rate, and dismissed the complaint. (There is a subordinate issue, relating to certain storage and pick-up charges, which we discuss at the end of this opinion and which the court below also resolved, though on other grounds, against Western.) Western has appealed.
4
We disagree with the district court. We find no ambiguity in the tariff, any more than we did in Western Transp. Co. v. Webster City Iron & Metal Co., supra, which involved the same carrier and very similar facts. The tariff imposes two requirements: the shipper and consignor must load and unload, and the bill of lading must contain a notation to that effect. That the notation requirement is pointless and a trap for the unwary, we grant; that allowing Western to collect for its "undercharge" will enrich it unjustly, by "compensating" it for services-loading and unloading the meats shipped by Wilson-that it did not perform, we also grant; that Western should as a matter of justice be estopped to claim a higher rate, since it was perfectly willing to allow Wilson to pay a lower rate without putting a notation to that effect on the bill of lading, we grant too. But these considerations do not make an unambiguous tariff ambiguous. If the duty to load and unload and the duty to say you will load and unload were contradictory, the tariff-construed, as every document must be construed, as a whole-would be ambiguous. They are not, and it is not.
5
If we were dealing with an ordinary contract we would have not the slightest hesitation in concluding that at the time the shipments were made the parties did not intend the noting of the shipper's intent to load (and the consignee's to unload) to be a condition precedent to the shipper's receiving the rate specified in the contract of carriage, provided the shipper and consignor actually did the loading and unloading, as they did here; and we would construe the contract accordingly. But the system of regulation created by Congress when it passed the first Interstate Commerce Act in 1887, a system unchanged (so far as is relevant to this case) to this day, limits the freedom of contract between shippers and carriers. Among other things that Congress was concerned with-at least ostensibly, and ostensible concerns are pretty much all a court can consider when construing a statute-was the "evil" of big shippers' getting secret discounts from railroads. See S.Rep.No.46, 49th Cong., 1st Sess. 181, 188-90, 198-200 (1886); New Haven R.R. v. ICC, 200 U.S. 361, 391-92, 394, 26 S.Ct. 272, 276-77, 278, 50 L.Ed. 515 (1906). To prevent this supposed evil Congress required the railroads (and later the motor carriers, when they were brought under the Interstate Commerce Commission's wing too) to charge only in accordance with published tariffs. See Act of Feb. 4, 1887, ch. 104, § 6(7), 24 Stat. 380, as amended, 49 U.S.C. §§ 10761, 10762. This goal would be subverted if a shipper and carrier could by agreement change the terms of the applicable published tariff. See S.Rep.No.46, supra, at 200. In effect Wilson received an off-tariff discount, because it was allowed to pay a low rate without complying with all of the terms of the tariff containing the rate.
6
Of course the facts of this case are remote from the concerns that moved Congress to set up the scheme we have described. There is no indication that Wilson is a powerful shipper or that not complying with the notation requirement saved it significant expense and so was the equivalent of a secret discount and hence a source of actual or potential advantage over competing shippers. But Congress did not create a flexible standard for the courts to apply in accordance with the facts, equities, and economic realities of the particular case. It forbade carriers to receive any different compensation from the rate in the applicable tariff. The tariff under which Wilson shipped its meats via Western was not the applicable tariff, because Wilson failed to comply with all of its terms; and Western is therefore entitled to recover the undercharge, regardless of equitable considerations. There is no judicial power of equitable reformation of tariffs as of ordinary contracts. We will not allow the loose use of the word "ambiguity" to bring in such reformation by the back door.
7
True, it is often said that "a tariff should be interpreted to avoid unjust, absurd, or improbable results" and that "the practical application of tariffs by interested persons should also be considered in determining the meaning of the tariffs." National Van Lines, Inc. v. United States, 355 F.2d 326, 332-33 (7th Cir. 1966). If applied to this tariff, such precepts would be fatal to Western. But they are general precepts of contract construction and do not apply to a tariff unless it is ambiguous. If it is ambiguous, it should be construed like any other contract. But if it is unambiguous the parties are bound by its terms and the aids to construction are irrelevant. We realize how artificial this approach would be if tariffs were merely contracts. If the parties to a contract mean something different from what they said, it is their intentions (so long as they coincide), not the imperfect expression of those intentions in the words of the contract, that govern. But that is because the purpose of contract interpretation is to carry out the will of the parties as of the time the contract was made. An equally important purpose of tariff interpretation is to prevent special deals. That is why interpretation is permitted only when the tariff is ambiguous, so that a literal reading is impossible.
8
But it does not follow that the shipper is necessarily without any remedy in a case like this. A tariff provision has to be reasonable. See 49 U.S.C. § 10704(a). If it is not, it violates the statute; and the Commission, either on its own initiative or on complaint, "shall take appropriate action to compel compliance with" the statute. 49 U.S.C. § 11701. If the notation requirement is, as it appears to be, entirely pointless, the Commission can be expected to set aside this part of the tariff-thus knocking the props out from under Western's case-if asked to do so. Wilson should have done what Iowa Beef Processors, Inc., another of Western's customers, did when sued by Western in bankruptcy court on the very tariff in issue in this case-ask for a stay of the court proceedings and then ask the Commission to declare the notation requirement unreasonable. The Commission did so. Iowa Beef Processors, Inc. v. Western Transp. Co., ICC Docket No. 32521F (Sept. 14, 1981). Incidentally, the Commission also found the tariff to be unambiguous-that is why it had to reach the issue of reasonableness-and this finding should have carried great weight with the district court in the present case.
9
Although it seems highly likely that the Commission would, if asked, hold that the notation requirement was unreasonable as applied to Wilson-since, as we have said, it is the same requirement, in the same tariff, that Iowa Beef successfully challenged-the district court did not have the power to declare the requirement unreasonable. Only the ICC can do that, see, e.g., Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 448, 27 S.Ct. 350, 358, 51 L.Ed. 553 (1907); ICC v. Atlantic Coast Line R.R., 383 U.S. 576, 579-80, 86 S.Ct. 1000, 1003-04, 16 L.Ed.2d 109 (1966); and Wilson, for reasons unexplained, failed to ask the court for a stay to permit a reference to the ICC. But it is not too late for Wilson. Ordinarily we would not condone a shipper's litigating his defenses to an undercharge action in stages-first arguing that the tariff is ambiguous, then after losing on that ground in the court of appeals asking the Commission to declare the tariff unreasonable. But since the Commission has held, in the Iowa Beef Processors case, that the tariff provision in question is unreasonable, and since the carrier's case rests on the most diaphanous of technicalities, we shall give the shipper another chance.
10
We note parenthetically that Wilson should not encounter any statute of limitations problem despite the long lapse of time between the alleged undercharges and any complaint or petition that it may file with the Commission in the wake of this decision. The statute of limitations in the Interstate Commerce Act, 49 U.S.C. § 11706, refers only to actions seeking payment of money, which Wilson's action in the Commission would not, technically anyway, be. In any event, United States v. Western Pac. R.R., 352 U.S. 59, 71, 77 S.Ct. 161, 169, 1 L.Ed.2d 26 (1956), holds that the statute of limitations does not "bar reference to the Commission of questions raised by way of defense in suits which are themselves timely brought." Were this not the rule, a plaintiff such as Western could bar the shipper's recourse to the Commission simply by delaying its suit until the limitations period had almost run.
11
It remains to consider the plaintiff's claim for some $12,000 in miscellaneous storage and Sunday pick-up charges (mainly the former). The tariff provides that the shipper must pay the cost of storing his goods if it was his own act or omission that forced the carrier to store them. Wilson moved for summary judgment and submitted in support of the motion an affidavit denying that it had requested any services on the dates in question. Western submitted a contrary affidavit by its consultant. The district court granted Wilson's motion on the ground that the consultant's affidavit contained merely his "own opinions and conclusions based on his personal work sheets." We are puzzled by this statement. Attached to the affidavit were two invoices which appear to support Western's claim for storage charges, and we do not understand how the court could have concluded that Western had failed to raise a genuine issue of material fact, see Fed.R.Civ.P. 56(c), at least with respect to those invoices. Moreover, the affidavit states that these invoices are representative of others, and Western was entitled to an opportunity to substantiate this statement. We are not enlightened by the district court's citation of Durasteel Co. v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953), for the proposition that Western failed to raise a genuine issue of material fact; all Durasteel holds (so far as is relevant to this case) is that "an issue of fact is not genuine unless it has legal probative force as to a controlling issue." The issue of whether Wilson caused Western to store Wilson's freight was certainly genuine in this sense. We are not prepared to conclude that this part of the case cannot be disposed of on summary judgment but we want the district court to take another look at its ruling in light of the above discussion.
12
The judgment of the district court is reversed and the case remanded for further proceedings consistent with this opinion. As we have said, Wilson may if it wants request the district court to stay the proceedings while it raises before the Interstate Commerce Commission, under the procedure set forth in 49 C.F.R. § 1100.26, the issue of the reasonableness of the notation requirement in the tariff. See Union Pac. R.R. v. Bay Area Shippers Consolidating Ass'n, Inc., 594 F.2d 1291, 1294 (9th Cir. 1979).
13
REVERSED AND REMANDED.
*
Of the Northern District of Illinois
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508 U.S. 464 (1993)
RAKE et al.
v.
WADE, TRUSTEE
No. 92-621.
United States Supreme Court.
Argued March 22, 1993.
Decided June 7, 1993.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
*465 Thomas, J., delivered the opinion for a unanimous Court.
David A. Carpenter argued the cause for petitioners. With him on the briefs was J. Edwin Poston.
Lawrence A. G. Johnson argued the cause and filed a brief for respondent.
Ronald J. Mann argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Wallace, and Alfred J. T. Byrne.
Justice Thomas, delivered the opinion of the Court.
This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage *466 pursuant to § 1322(b)(5) of the Bankruptcy Code, 11 U. S. C. § 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under §§ 506(b) and 1325(a)(5) of the Code.
I
Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Hannon [1] initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each case the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor.
In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney's fees and interest on the arrearages. The Bankruptcy Court overruled respondent's objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the *467 cases and affirmed. The District Court held that the Chapter 13 provisions relating to the "curing of defaults"11 U. S. C. §§ 1322(b)(2) and 1322(b)(5)"do not alter the contract between the parties governing such matters as interest, if any, to be paid on arrearage," and that allowing interest on arrearages would be "improper," since the notes did not provide for it. App. to Pet. for Cert. A-24.
The United States Court of Appeals for the Tenth Circuit reversed. Wade v. Hannon, 968 F. 2d 1036 (1992). The court held that § 506(b) of the Bankruptcy Code, as interpreted in United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989), entitles an oversecured creditor to postpetition interest on arrearages and other charges paid off under a Chapter 13 plan, "even if the mortgage instruments are silent on the subject and state law would not require interest to be paid." 968 F. 2d, at 1042. The Tenth Circuit relied in part on the Sixth Circuit's decision in In re Colgrove, 771 F. 2d 119 (1985), which reached the same result but rested its decision on § 1325(a)(5) as well as § 506(b) of the Bankruptcy Code. Four other Courts of Appeals have held that under the "cure" and "modification" provisions of § 1322(b) a mortgagee is not entitled to interest on home mortgage arrearages.[2] We granted certiorari to resolve the conflict. 506 U. S. 972 (1992).
II
Petitioners' Chapter 13 plans proposed to "cure" the defaults on respondent's oversecured home mortgages[3] by establishing repayment schedules for the arrearages. Three interrelated provisions of the Bankruptcy Code determine *468 whether respondent is entitled to interest on those arrearages: §§ 506(b), 1322(b), and 1325(a)(5).
Section 506(b), which applies to Chapter 13 proceedings pursuant to 11 U. S. C. § 103(a), provides that holders of oversecured claims are "allowed" postpetition interest on their claims.[4] In Ron Pair we held that the right to postpetition interest under § 506(b) is "unqualified" and exists regardless of whether the agreement giving rise to the claim provides for interest. 489 U. S., at 241. It is generally recognized that the interest allowed by § 506(b) will accrue until payment of the secured claim or until the effective date of the plan. See 3 Collier on Bankruptcy ¶ 506.05, p. 506-43, and n. 5c (15th ed. 1993) (hereinafter Collier). Respondent concedes, and his amicus the United States agrees, that because § 506(b) "has the effect of allowing a claim to the creditor, . . . the rights granted under Section 506(b) are relevant only until confirmation of the plan." Brief for United States as Amicus Curiae 11, n. 7. Accord, Tr. of Oral Arg. 24, 34. Petitioners also agree that § 506(b) applies only from the date of filing through the confirmation date. Brief for Petitioners 10, 13.
Two paragraphs of § 1322(b) are relevant here: §§ 1322(b) (2) and 1322(b)(5). Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific "no modification" exception for holders of claims secured only *469 by a lien on the debtor's principal residence.[5] Section 1322(b)(5) expressly authorizes debtors to cure any defaults on a long-term debt, such as a mortgage, and to maintain payments on the debt during the life of the plan.[6] Under § 1322(b)(5), a plan may provide for the curing of any defaults and the maintenance of payments on a long-term debt "notwithstanding" § 1322(b)(2)'s prohibition against modifications of the rights of home mortgage lenders.
The final provision bearing on this case§ 1325(a)(5) states that "with respect to each allowed secured claim provided for by the plan," one of three requirements must be satisfied before the plan may be confirmed: (1) the holder of the claim has accepted the plan, § 1325(b)(5)(A); (2) the debtor surrenders the property securing such claim to the secured creditor, § 1325(a)(5)(C); or (3) the holder of the secured claim retains the lien securing such claim, § 1325(a)(5)(B)(i), and "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim," § 1325(a)(5)(B)(ii). Thus, unless the creditor accepts the plan or the debtor surrenders the collateral to the creditor, § 1325(a)(5)(B)(ii) guarantees that property distributed under a plan on account of a claim, including deferred cash payments in satisfaction of the claim, see 5 Collier ¶ 1325.06[4][b][ii], must equal the present dollar value of such claim as of the confirmation date. Petitioners, respondent, and the United States agree that "[s]ection 1325(a)(5)(B) *470 requires all holders of allowed secured claims to be paid the present value of such claims, which implies the payment of interest." Reply Brief for Petitioners 5. Accord, Brief for Respondent 16-17; Brief for United States as Amicus Curiae 11-12, and n. 8.
III
Although petitioners and respondent generally agree as to the requirements of §§ 506(b) and 1325(a)(5), petitioners argue that those provisions do not apply when the debtor cures a default on a home mortgage under § 1322(b)(5). Some courts have construed the "cure" and "modification" provisions of § 1322(b) so broadly as to render §§ 506(b) and 1325(a)(5) inapplicable to the curing of defaults on home mortgages. E. g., Landmark Financial Services v. Hall, 918 F. 2d 1150, 1153-1155 (CA4 1990). Petitioners contend that this is precisely what § 1322(b) requires.
A
Turning first to § 506(b), petitioners concede that respondent holds an oversecured claim, which includes arrearages[7] and that "`an oversecured creditor is ordinarily entitled to an allowance for postpetition interest on its secured claim under Chapter 13.'" Reply Brief for Petitioners 2 (quoting In re Laguna, 944 F. 2d 542, 544 (CA9 1991) (footnote omitted), cert. denied, 503 U. S. 966 (1992)). They argue, however, that § 1322(b)(5) "operate[s] to the exclusion of the provisions of § 506(b)," Brief for Petitioners 9, and that § 506(b) thus "does not require the payment of . . . preconfirmation interest on home mortgage arrearages in Chapter 13 bankruptcy proceedings," Reply Brief for Petitioners 1. Because § 1322(b)(5) does not expressly negate § 506(b), petitioners suggest that "`[d]espite some broad language in Ron Pair, *471. . . § 506(b) is inapplicable in the context of [Chapter 13] mortgage cures.'" Brief for Petitioners 13 (quoting Hall, supra, at 1154).
Petitioners' interpretation of §§ 506(b) and 1322(b)(5) does not comport with the terms of those provisions. Under § 506(b) the holder of an oversecured claim is allowed interest on his claim to the extent of the value of the collateral. Section 506(b) "directs that postpetition interest be paid on all oversecured claims," Ron Pair, 489 U. S., at 245 (emphasis added), and, as the parties acknowledge, such interest accrues as part of the allowed claim from the petition date until the confirmation or effective date of the plan. See supra, at 468. The arrearages owed on the mortgages held by respondent are plainly part of respondent's oversecured claims. Under the unqualified terms of § 506(b), therefore, respondent is entitled to preconfirmation interest on these arrearages. Where the statutory language is clear, our "`sole function . . . is to enforce it according to its terms.'" Ron Pair, supra, at 241 (quoting Caminetti v. United States, 242 U. S. 470, 485 (1917)). Accord, Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992).
Section 1322(b)(5), on the other hand, states that a Chapter 13 plan may "provide for the curing of any default and the maintenance of payments" on certain claims. While § 1322(b)(5) authorizes a Chapter 13 plan to provide for payments on arrearages to effectuate a cure after the effective date of the plan, nothing in that provision dictates the terms of the cure. In particular, § 1322(b)(5) provides no indication that the allowed amount of the arrearages cured under the plan may not include interest otherwise available as part of the oversecured claim under § 506(b). We generally avoid construing one provision in a statute so as to suspend or supersede another provision. To avoid "deny[ing] effect to a part of a statute," we accord "`significance and effect . . . to every word.'" Ex parte Public Nat. Bank of New York, 278 U. S. 101, 104 (1928) (quoting Market Co. v. Hoffman, 101 *472 U. S. 112, 115 (1879)). Construing §§ 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that § 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee's claim isoversecured, § 506(b) entitles the mortgagee to preconfirmation interest on such arrearages.
B
Petitioners make virtually the same argument with respect to postconfirmation interest under § 1325(a)(5). Petitioners concede that under § 1325(a)(5)(B)(ii) secured creditors are entitled to the "present value of [their] claims, which implies the payment of interest." Reply Brief for Petitioners 5.[8] Petitioners contend, however, that § 1325(a)(5)(B)(ii) "applies only to secured claims which have been modified in the Chapter 13 plan, and which, by reason of Section 1322(b)(2), may not include home mortgages." Ibid. Since nothing in the Code states that § 1325(a)(5) applies only to "modified" claims, petitioners turn to those Court of Appeals decisions that have held that "the legislative history indicates that § 1322(b) was intended to create a special exception to § 1325(a)(5)(B)." In re Terry, 780 F. 2d 894, 896-897 (CA11 1985). Accord, In re Laguna, supra, at 544-545; Hall, 918 F. 2d, at 1154-1155; Appeal of Capps, 836 F. 2d 773, 776 (CA3 1987).
*473 Petitioners' interpretation of §§ 1322(b) and 1325(a)(5) is refuted by the plain language of the Code. Section 1325(a)(5) applies by its terms to "each allowed secured claim provided for by the plan." The most natural reading of the phrase to "provid[e] for by the plan" is to "make a provision for" or "stipulate to" something in a plan. See, e. g., American Heritage Dictionary 1053 (10th ed. 1981) ("provide for" defined as "to make a stipulation or condition"). Petitioners' plans clearly "provided for" respondent's home mortgage claims by establishing repayment schedules for the satisfaction of the arrearages portion of those claims. As authorized by § 1322(b)(5), the plans essentially split each of respondent's secured claims into two separate claimsthe underlying debt and the arrearages. While payments of principal and interest on the underlying debts were simply "maintained" according to the terms of the mortgage documents during the pendency of petitioners' cases, each plan treated the arrearages as a distinct claim to be paid off within the life of the plan pursuant to repayment schedules established by the plans. Thus, the arrearages, which are a part of respondent's home mortgage claims, were "provided for" by the plans, and respondent is entitled to interest on them under § 1325(a)(5)(B)(ii).[9]
*474 Other provisions of Chapter 13 containing the phrase "provided for by the plan" make clear that petitioners' plans provided for respondent's home mortgage claim. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (statutory terms are often "clarified by the remainder of the statutory schemebecause the same terminology is used elsewhere in a context that makes [their] meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law") (citation omitted). Title 11 U. S. C. § 1328(a) (1988 ed., Supp. III), for example, utilizes the phrase "provided for by the plan" in dealing with the discharge of debts under Chapter 13.[10] As used in § 1328(a), that phrase is commonly understood to mean that a plan "makes a provision" for, "deals with," or even "refers to" a claim. See 5 Collier ¶ 1328.01, at 1328-9. In addition, § 1328(a) unmistakably contemplates that a plan "provides for" a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by § 1322(b)(5). Section 1328(a) states that "all debts provided for by the plan" are dischargeable, and then lists three exceptions.[11] One type of claim that is "provided for by the plan" yet excepted from discharge under § 1328(a) is *475 a claim "provided for under section 1322(b)(5) of this title." § 1328(a)(1). If claims that are subject to § 1322(b)(5) were not "provided for by the plan," there would be no reason to make an exception for them in § 1328(a)(1). Under § 1325(a)(5), therefore, respondent is entitled to the present value of arrearages paid off under the terms of the plans as an element of an "allowed secured claim provided for by the plan."
IV
We hold that respondent is entitled to preconfirmation and postconfirmation interest on arrearages paid off under petitioners' plans.[12] We therefore affirm the judgment of the Court of Appeals.
So ordered.
NOTES
[1] Because the Hannons did not join the petition for certiorari, they are respondents in this Court under this Court's Rule 12.4.
[2] In re Laguna, 944 F. 2d 542, 545 (CA9 1991), cert. denied, 503 U. S. 966 (1992); Landmark Financial Services v. Hall, 918 F. 2d 1150, 1153-1155 (CA4 1990); Appeal of Capps, 836 F. 2d 773, 776 (CA3 1987); In re Terry, 780 F. 2d 894, 895-896 (CA11 1985).
[3] By "home mortgage" we mean an allowed claim secured only by a security interest in the debtor's principal residence. See 11 U. S. C. § 1322(b)(2).
[4] Section 506(b) states: "To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose." Under this provision, an oversecured creditor is entitled to postpetition interest on its claim only "to the extent that such interest, when added to the principal amount of the claim," does not "exceed the value of the collateral." United Savings Assn. of Texas v. Timbers of In wood Forest Associates, Ltd., 484 U. S. 365, 372 (1988).
[5] Section 1322(b)(2) provides that a Chapter 13 plan may "modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims."
[6] Section 1322(b)(5) states that "notwithstanding" § 1322(b)(2), a plan may "provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due."
[7] Respondent is the holder of an allowed oversecured claim in each pair of petitioners' cases, and this claim includes "arrearages on the note and mortgage." App. 6, 22.
[8] When a claim is paid off pursuant to a stream of future payments, a creditor receives the "present value" of its claim only if the total amount of the deferred payments includes the amount of the underlying claim plus an appropriate amount of interest to compensate the creditor for the decreased value of the claim caused by the delayed payments. This generally involves a determination of an appropriate discount rate and a discounting of the stream of deferred payments back to the present dollar value of the claim at confirmation. See 5 Collier¶ 1325.06[4][b][iii][B]. Because the issue is not presented in this case, we express no view on the appropriate rate of interest that debtors must pay on arrearages cured pursuant to § 1322(b)(5).
[9] Petitioners' argument that "modified" claims cannot include home mortgage claims that have been "cured" does not withstand scrutiny. When a plan cures a default and reinstates payments on a claim, the creditor's contractual rights arising from the defaultwhich in this case included the right to declare all payments due and payable, accelerate the debt, possess the property, collect rents generated by the property, and foreclose on the property, see App. 14-15, 29-30are abrogated and therefore "modified." These modifications are allowed under § 1322 (b)(5) "notwithstanding" the fact that § 1322(b)(2) generally prohibits the modification of the rights of home mortgage holders. Petitioners' construction of § 1322(b)(2) also leads to the incongruous result that only home mortgage claims would be denied the benefits of § 1325(a)(5). By prohibiting modifications of the rights of holders of home mortgage claims, Congress could not have intended, in our view, to afford the holders of these claims less protection than the holders of other secured claims.
[10] Section 1328(a) provides: "As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt
"(1) provided for under section 1322(b)(5) of this title;
"(2) of the kind specified in paragraph (5) or (8) of section 523(a) or 523(a)(9) of this title; or
"(3) for restitution included in a sentence on the debtor's conviction of a crime."
[11] Section 1328(a)(1) refers to "debts" rather than claims, but a debt under the Code is simply "liability on a claim." 11 U. S. C. § 101(12) (1988 ed., Supp. III).
[12] Petitioners suggest that by allowing postpetition interest on arrearages "and other charges," the Tenth Circuit misconstrued United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989). Brief for Petitioners 21. We disagree. Ron Pair held that under § 506(b) a creditor is entitled to postpetition interest on its "oversecured claim." 489 U. S., at 241. The arrearages portion of respondent's oversecured claims in this case included the amounts past due on the notes and the "other charges" to which the Tenth Circuit referred. App. 6, 22.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 14, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CALVIN JOHNSON,
Plaintiff - Appellant,
v. No. 18-1094
(D.C. No. 1:17-CV-03065-LTB)
RICK RAEMISCH; DONNA SIMS; JANE (D. Colo.)
DOE; JANE DOE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Calvin Johnson, a state prisoner proceeding pro se,1 challenges the district
court’s dismissal of his 42 U.S.C § 1983 lawsuit for frivolousness under 28 U.S.C.
§ 1915(e)(2)(B)(i). He also moves to proceed in forma pauperis (IFP) on appeal.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We construe a pro se appellant’s complaint liberally. Gaines v. Stenseng, 292
F.3d 1222, 1224 (10th Cir. 2002). But we won’t serve as his advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Exercising jurisdiction under 28 U.S.C. § 1291, we grant Johnson’s IFP motion but
affirm the dismissal of Johnson’s claims.
BACKGROUND
On February 14, 2018, Johnson filed a Second Amended Complaint against
Rick Raemisch, the Executive Director of Colorado Prisons; Donna Sims, a Sterling
Correctional facility employee; and two Jane Does, also Sterling Correctional
Facility employees, all in their individual and official capacities, under 42 U.S.C.
§ 1983. Johnson complained that he “was shorted a combined 80¢ worth of [his]
unassigned inmate state pay.” ROA at 45. Based on that allegation, he asserted
various due-process claims.
First, Johnson alleged that Raemisch violated his due-process rights “by
signing rules into effect that ha[ve] contradictory wording in ‘AR-850-03’ that
cause[] inmate banking staff to misinterpret the rules.” Id. at 48. Second, he alleged
that he complained about his missing unassigned inmate pay to Sims, who
purportedly responded that his inmate pay “[was] calculated correctly.” Id. at 46.
Third, Johnson alleged that Jane Doe violated his due process rights
by changing the interpretation of ‘AR-850-03’ from meaning that
unassigned inmate pay is exempt from the codes deducting money for
being ‘out-to-court’ to instead making unassigned pay subject to the
codes in ‘AR-850-03’ and deducting money from [his] unassigned pay
in [D]ecember 2017 for one day of [his] being ‘out to court’ for two
weeks.
Id. Fourth, he alleged that “another ‘Jane Doe’ or the same ‘Jane Doe’” violated his
due process rights “by removing money from [his] unassigned pay for what looks
2
like the code about being on ‘RFP’ status.” Id. Though she isn’t listed as a defendant,
Johnson alleges that a case manager, identified only as “[T]oohey,” violated his due-
process rights by refusing to mail, or to give him a “step-two” grievance form, with
which to complain. Last, Johnson argued that the law library is inadequate, which
violates his right to access the courts.
The district court dismissed the complaint as legally frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) and entered judgment by separate order. The district court
concluded that Johnson couldn’t sue the defendants in their official capacities,
because that would require construing Johnson’s allegations as claims against the
Colorado Department of Corrections, which is immune under the Eleventh
Amendment. As to Johnson’s individual capacity claims, the court found that
Johnson had failed to demonstrate the absence of an adequate post-deprivation state
remedy. As such, the district court rejected Johnson’s motion to proceed IFP on
appeal, certifying that any appeal wouldn’t be taken in good faith. This appeal
followed.
DISCUSSION
We review for an abuse of discretion a district court’s dismissal of a prisoner’s
complaint for frivolousness under 28 U.S.C. § 1915(e)(2)(B)(i). Fogle v. Pierson,
435 F.3d 1252, 1259 (10th Cir. 2006) (citing Fratus v. Deland, 49 F.3d 673, 674
(10th Cir. 1995)). But where the district court based its frivolousness dismissal on a
legal issue, we review the dismissal de novo. Id. (citing Conkle v. Potter, 352 F.3d
1333, 1335 n.4 (10th Cir. 2003)). “A district court may deem an [IFP] complaint
3
frivolous only ‘if it lacks an arguable basis either in law or in fact.’” Id. (quoting
Fratus, 49 F.3d at 674). Therefore, “dismissal is only appropriate ‘for a claim based
on an indisputably meritless legal theory’ and the frivolousness determination
‘cannot serve as a factfinding process for the resolution of disputed facts.’” Id.
(quoting Fratus, 49 F.3d at 674). However, simply failing to state a claim does not
rise to the level of frivolousness. Neitzke v. Williams, 490 U.S. 319, 325–30 (1989).
We first consider Johnson’s claims against the defendants, both in their official
and individual capacities. Next, we consider his IFP motion. Last, we consider the
Prison Litigation Reform Act’s (PLRA) relevance to this appeal.
(a) Official-Capacity Claims
Here, Johnson contends he can sue the defendants in their official capacities
under Monell v. Department of Social Services of City of New York, 436 U.S. 658
(1978). The Eleventh Amendment bars suits against states under 42 U.S.C. § 1983
“unless the State has waived its immunity.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66 (1989) (citing Welch v. Tex. Dep’t of Highways and Pub. Transp., 483
U.S. 468, 472–73 (1987) (plurality opinion)). A suit against a state official “in his or
her official capacity is not a suit against the official but rather is a suit against the
official’s office.” Id. at 71 (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). The
Supreme Court has held that 42 U.S.C. § 1983 did not abrogate states’ sovereign
immunity, Quern v. Jordan, 440 U.S. 332, 345 (1979), and Johnson cites no authority
for the proposition that Colorado has waived its immunity under § 1983. See Ruiz v.
4
McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002); Griess v. Colorado, 841 F.2d
1042, 1044 (10th Cir. 1988).
Johnson’s position is “indisputably meritless.” See Fogle, 435 F.3d at 1259.
Because there is no indication that Colorado has waived its Eleventh Amendment
immunity from federal suits, the district court correctly concluded that Johnson
couldn’t sue the defendants in their official capacities.
(b) Individual-Capacity Claims
On appeal, Johnson argues that the defendants’ deprivation of his unassigned
pay and Toohey’s refusals to let him proceed in the grievance process constitute due
process violations. He also argues that he lacks an adequate state-court remedy
because Colorado state courts are “strict about documents filed instead of treating
them liberally like federal courts.” Appellant’s Opening Br. at 8. Last, Johnson
requests that we allow him to either introduce slightly new claims on appeal or file a
third amended complaint in the district court incorporating those new arguments.
“The intentional deprivation of property is not a fourteenth amendment
violation if adequate state post-deprivation remedies are available.” Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989) (per curiam) (citing Hudson v. Palmer,
468 U.S. 517, 533 (1984)). Colorado law permits prison inmates to file suit against
state actors in their individual capacity when they “willful[ly] and wanton[ly]” cause
injuries.” Colo. Rev. Stat. Ann. § 24-10-105(1). And it permits pro se filings and
waiver of costs and expenses in civil actions for poor persons. Id. at § 13-16-103(1);
5
Durre, 869 F.2d at 547. Accordingly, indigence, lack of counsel, and confinement do
not render a state post-deprivation remedy inadequate. See id.
We agree with the district court that Johnson has failed to demonstrate that a
state-court suit is an inadequate remedy to vindicate his due-process claims against
defendants in their individual capacities. That Colorado state courts won’t construe
his claims as liberally as he would prefer doesn’t suffice to show inadequacy.2
However, we disagree with the district court’s conclusion that this claim is frivolous.
Johnson’s argument that his Colorado state-court remedy is inadequate isn’t based on
“fantastic or delusional scenarios.” See Williams, 490 U.S. at 328. We therefore
affirm the district court’s dismissal of Johnson’s individual capacity claims based on
his failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A]
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”) (internal quotations omitted).
As to his request that we consider new arguments for the first time on appeal,
we generally won’t, and we decline to do so now. Fogle v. Gonzales, 570 F. App’x
795, 796 (10th Cir. 2014) (citing United States v. Lyons, 510 F.3d 1225, 1238 (10th
Cir. 2007)). Likewise, we deny his request to file a Third Amended Complaint.
2
We note that in a previous appeal brought by Johnson concerning a due
process violation over inmate pay, a panel of this court concluded that the district
court abused its discretion when it dismissed Johnson’s lawsuit for frivolousness,
without permitting him to amend his complaint or considering whether such an
amendment would be futile. Johnson v. Whitney, 723 F. App’x 587, 594 (10th Cir.
2018). That isn’t a concern here, however, because the district court ordered Johnson
to file a Second Amended Complaint and explained to him the deficiencies in his
First Amended Complaint. Because Johnson’s Second Amended Complaint remained
deficient, the district court dismissed it.
6
(c) IFP Motion
Johnson moves to proceed IFP on appeal. To do so he must demonstrate (1) a
financial inability to prepay the required appellate filing fee, and (2) that he has
provided a “reasoned, nonfrivolous argument on the law and facts in support” of his
appeal. McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812–13 (quoting
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)). Because Johnson
lacks the funds to prepay the entire filing fee and has, as previously explained, raised
at least one nonfrivolous argument on appeal, we grant his IFP motion. See id.
(d) PLRA
Johnson acquired his first strike under the PLRA in Johnson v. Doe, No. 17-
CV-2800-LTB (D. Colo. Jan. 16, 2018), aff’d No. 18-1038 (10th Cir. July 10, 2018)
(unpublished) (modifying dismissal from frivolous under § 1915(e)(2)(B)(i) to failure
to state a claim under § 1915(e)(2)(B)(ii), which is still an enumerated ground under
§ 1915(g)). And although we affirm the district court’s judgment here on different
grounds, he acquired another strike when the district court in the present case
dismissed his claims as frivolous. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763
(2015) (“A prior dismissal on a statutorily enumerated ground counts as a strike even
if the dismissal is the subject of an appeal.”); Jennings v. Natrona Cty. Detention
Ctr., 175 F.3d 775, 780 (10th Cir. 1999) (“If we affirm a district court dismissal [for
failure to state a claim] under 28 U.S.C. § 1915(e)(2)(B), the district court dismissal
then counts as a single strike.”), overruled in part on other grounds, Coleman, 135 S.
7
Ct. at 1763. However, because we conclude that this appeal is nonfrivolous, we do
not impose another strike here.3 See id.
CONCLUSION
The judgment of the district court is affirmed for failure to state a claim, and
Johnson’s motion to proceed IFP is granted.
Entered for the Court
Gregory A. Phillips
Circuit Judge
3
We note, however, that since filing this appeal Johnson has acquired several
more strikes. See Johnson v. Raemisch, No. 17-cv-3065 (D. Colo. Feb. 27, 2018)
(dismissed as legally frivolous), on appeal, No. 18-1094 (10th Cir.); Johnson v.
Soucie, No. 17-cv-3093 (D. Colo. Mar. 19, 2018) (dismissed as legally frivolous and
as seeking monetary damages from immune defendants), appeal dismissed for failure
to prosecute, No. 18-1152 (10th Cir. June 13, 2018); Johnson v. Gallagher, No. 18-
cv-377 (D. Colo. March 22, 2018) (dismissed as legally frivolous and as seeking
monetary damages from immune defendants), appeal dismissed for failure to
prosecute, No. 18-1153 (10th Cir. June 13, 2018); Johnson v. Gallagher, No. 18-cv-
424 (D. Colo. March 22, 2018) (dismissed as legally frivolous and as seeking
monetary damages from immune defendants), appeal dismissed for failure to
prosecute, No. 18-1151 (10th Cir. June 13, 2018); Johnson v. Raemisch, No. 18-cv-
425 (D. Colo. April 4, 2018) (dismissed as legally frivolous and as seeking monetary
damages from immune defendants), appeal dismissed for failure to prosecute, No.
18-1167 (10th Cir. May 22, 2018); Johnson v. Overturf, No. 18-cv-195 (D. Colo.
April 9, 2018) (dismissed as legally frivolous and as seeking monetary damages from
immune defendants), appeal dismissed for failure to prosecute, No. 18-1169 (10th
Cir. May 22, 2018); Johnson v. Gallagher, No. 18-cv-427 (D. Colo. April 12, 2018)
(dismissed as legally frivolous and as seeking monetary damages from immune
defendants), appeal dismissed for failure to prosecute, No. 18-1168 (10th Cir. May
22, 2018); Johnson v. Watanabe, No. 18-cv-942 (D. Colo. April 26, 2018) (dismissed
as legally frivolous and malicious and as asserted against defendants entitled to
immunity) (no appeal); Johnson v. Mix, No. 18-cv-943 (D. Colo. May 3, 2018)
(dismissed as legally frivolous and malicious or asserted against defendants entitled
to immunity) (no appeal).
8
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL ANN LUTHER, No. 16-55987
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-03356-
JLS-JEM
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
For the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
Filed June 4, 2018
Before: Marsha S. Berzon and Jay S. Bybee, Circuit
Judges, and Sharon L. Gleason,* District Judge.
Opinion by Judge Gleason
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 LUTHER V. BERRYHILL
SUMMARY**
Social Security
The panel reversed the district court’s judgment that
affirmed the administrative law judge’s denial of a claimant’s
application for disability insurance benefits under Title II of
the Social Security Act and supplemental security income
under Title XVI of the Act.
As an initial matter, the panel held that the Appeals
Council’s reasoning for denying review is not considered on
subsequent judicial review, and turned to the reasoning
provided by the ALJ in her decision.
The panel held that the ALJ erred in not adequately
addressing claimant’s 100% Veterans Affairs (“VA”)
disability rating in her decision. The panel held that although
the ALJ noted claimant’s VA disability rating at the hearing
and in her written decision, she did not address how she had
considered and weighed the VA’s rating or articulate any
reasons for rejecting it. The panel held that remand for
further proceedings was appropriate where it was unclear
from the record whether the ALJ would be required to find
claimant disabled after evaluating the VA disability rating.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LUTHER V. BERRYHILL 3
COUNSEL
Erika Bailey Drake (argued) and Roger D. Drake, Drake &
Drake P.C., Calabasas, California, for Plaintiff-Appellant.
Tina L. Naicker (argued), Special Assistant United States
Attorney; Deborah L. Stachel, Acting Regional Chief
Counsel, Region IX; Sandra R. Brown, Acting United States
Attorney; Social Security Administration, San Francisco,
California; for Defendant-Appellee.
OPINION
GLEASON, District Judge:
Carol Ann Luther appeals the district court’s judgment
affirming the administrative law judge (“ALJ”)’s denial of
her application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and
supplemental security income (“SSI”) under Title XVI of the
Act. We hold that the ALJ erred in not adequately addressing
Luther’s 100% Veterans Affairs (“VA”) disability rating in
her decision. We reverse and remand for further proceedings
consistent with this opinion.
BACKGROUND
On February 27, 2013, Luther filed an application for DIB
and SSI. She sought these benefits due to her post-traumatic
stress disorder (“PTSD”) and degenerative disc disease. At
that time, she claimed a disability onset date of December 28,
2012. In December 2013, the VA concluded that Luther was
100 percent disabled for PTSD, 30 percent disabled for
4 LUTHER V. BERRYHILL
urinary tract infection, and 10 percent disabled for
degenerative disc disease of the lumbar spine, for an overall
rating of 100% disabled, effective December 6, 2012. Luther
provided only the first two pages of the total five pages of the
VA’s rating decision to the ALJ.
On October 27, 2014, the ALJ conducted a hearing. At the
beginning of the hearing, the parties briefly discussed the VA
disability rating. Luther amended her social security disability
onset date to correspond with the December 6, 2012 effective
date of her VA rating. The ALJ then stated, “One hundred
percent disability VA has no bearing. It’s something we
consider—.”
In a decision dated December 3, 2014, the ALJ found that
Luther was not disabled. The decision contained only two
limited references to the VA rating. First, under the
“Jurisdiction and Procedural History” section it states, “The
claimant was awarded 100% VA disability commencing
December 6, 2012. At the hearing, the claimant amended her
onset date to December 6, 2012 to correspond with the onset
of her VA disability award.” The second reference, later in
the decision, states, “At the hearing, the claimant amended
her onset date to December 6, 2012, which is the date she was
awarded VA disability.”
Luther requested the Appeals Council review the ALJ’s
decision. There, she argued that the ALJ erred by failing to
provide a “specific, valid, record-based rationale to not give
the VA ratings great weight.”
On March 10, 2015, the Appeals Council denied Luther’s
request for review. The Council found “[t]he record that was
before the Administrative Law Judge was sufficient to
LUTHER V. BERRYHILL 5
evaluate [Luther’s] disability status under the Social Security
Regulations.” The Council observed that the ALJ had the
benefit of extensive medical records, including records that
had not been provided to the VA. The Appeals Council also
stated that the VA disability rating was based on the same
symptoms “appropriately considered by the [ALJ] . . . under
applicable Social Security Regulations.” The Council found
that “[e]ven if the ‘Evidence’ and ‘Reasons For Decision’
identified [by the VA] . . . were sufficient to support a VA
service connected disability rating of 100% due to PTSD,
they were/are not sufficient to support a finding of disability
under Social Security Regulations.”
Shortly after receiving the Appeals Council decision,
Luther asked the Council to reopen her case. She submitted
“an entire copy of the [VA’s] rating decision” to the Appeals
Council, which included three additional pages of the VA’s
analysis that had not been previously provided to the ALJ or
to the Appeals Council. The record does not contain any
response by the Appeals Council. Nor does the administrative
record contain these additional pages.
On May 5, 2015, Ms. Luther appealed to the Central
District of California. The district court adopted the
magistrate judge’s findings and recommendations, affirming
the agency’s decision. On appeal to this court, Luther asserts
that the ALJ erred in not giving great weight to the VA
disability rating, rejecting the opinions from Luther’s treating
physicians, and discrediting Luther’s subjective complaints.
She seeks a remand for the calculation of benefits or
alternatively a remand for further proceedings. Because we
reverse and remand as to the VA disability rating, we do not
address Luther’s other arguments.
6 LUTHER V. BERRYHILL
STANDARD OF REVIEW
A district court’s order affirming an ALJ’s denial of
benefits is reviewed de novo. Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015). A decision by the
Commissioner to deny disability benefits will not be
overturned unless it is either not supported by substantial
evidence or is based upon legal error. Matney ex rel. Matney
v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing
Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
“Substantial evidence is ‘more than a mere scintilla,’ but less
than a preponderance.” Saelee v. Chater, 94 F.3d 520, 522
(9th Cir. 1996) (citation omitted) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). In reviewing the
agency’s determination, a reviewing court considers the
evidence in its entirety, weighing both the evidence that
supports and that detracts from the ALJ’s conclusion. Jones
v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “Where
evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be
upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005). A reviewing court may only consider the reasons
provided by the ALJ in the disability determination and “may
not affirm the ALJ on a ground upon which he did not rely.”
Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
DISCUSSION
I.
Luther asserts that the district court erred in relying on the
Appeals Council’s discussion of the VA rating because the
Appeals Council denied Luther’s request for review. The
magistrate judge acknowledged “[t]his Court has no
LUTHER V. BERRYHILL 7
jurisdiction to review the decision of the Appeals Council
denying review.” But the magistrate judge nonetheless
discussed the Council’s reasoning in denying review and
relied on that analysis in his decision. Luther maintains that
when undertaking judicial review of a Social Security
disability determination, a reviewing court cannot rely on the
reasons that the Appeals Council set forth when it denied
review.
The Commissioner maintains that a reviewing court
“must look to the Appeals Council’s explanation of its refusal
to grant Claimant’s request.” For that proposition, the
Commissioner relies on Ramirez v. Shalala, 8 F.3d 1449 (9th
Cir. 1993). In Ramirez, additional medical evidence was
submitted to the Appeals Council that had not been provided
to the ALJ. Id. at 1451. The Appeals Council then denied
review. Id. On appeal, we held the additional evidence should
be considered by a reviewing court:
[A]lthough the Appeals Council “declined to
review” the decision of the ALJ, it reached its
ruling after considering the case on the merits;
examining the entire record, including the
additional material; and concluding that the
ALJ’s decision was proper and that the
additional material failed to “provide a basis
for changing the hearing decision.” For these
reasons we consider on appeal both the ALJ’s
decision and the additional material submitted
to the Appeals Council.
Id. at 1452; see also Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1231–32 (9th Cir. 2011) (holding that a
reviewing court may review additional evidence submitted to
8 LUTHER V. BERRYHILL
and rejected by the Appeals Council, but may not review an
Appeals Council decision denying a request for review);
Harman v. Apfel, 211 F.3d 1172, 1179–80 (9th Cir. 2000).
Ramirez did not address whether the reasoning of the
Appeals Council in denying review should be considered by
a reviewing court. Instead, we focused on whether the
additional evidence submitted to the Appeals Council was
included in the record to the reviewing court. In Luther’s
case, no additional evidence was added to the administrative
record by the Appeals Council; therefore, Ramirez does not
apply.
Here, the Appeals Council denied Luther’s request for
review, making the ALJ’s decision the final decision of the
Commissioner. See Sims v. Apfel, 530 U.S. 103, 106–07
(2000) (“SSA regulations provide that, if the Appeals Council
grants review of a claim, then the decision that the Council
issues is the Commissioner’s final decision. But if . . . the
Council denies the request for review, the ALJ’s opinion
becomes the final decision.”); Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012) (“When the
Appeals Council declines review, the ALJ’s decision
becomes the final decision of the Commissioner, and the
district court reviews that decision for substantial evidence,
based on the record as a whole. . . .”) (citations and internal
quotation marks omitted)); Taylor, 659 F.3d at 1231 (“When
the Appeals Council denies a request for review, it is a non-
final agency action not subject to judicial review because the
ALJ’s decision becomes the final decision of the
Commissioner.”). Therefore, the Appeals Council’s reasoning
for denying review is not considered on subsequent judicial
LUTHER V. BERRYHILL 9
review.1 We turn to the reasoning provided by the ALJ in her
decision.
II.
Luther asserts “[t]he ALJ erred by not providing
persuasive, valid, and specific reasons for discounting Ms.
Luther’s VA rating.” The Commissioner responds that the
ALJ “specifically acknowledged that the VA found Claimant
100% disabled.”
“[T]he ALJ must consider the VA’s finding in reaching
his decision and the ALJ must ordinarily give great weight to
a VA determination of disability.” McLeod v. Astrue,
640 F.3d 881, 886 (9th Cir. 2011) (internal quotation marks
omitted) (quoting McCartey, 298 F.3d at 1076). We have
found great weight to be ordinarily warranted “because of the
marked similarity between these two federal disability
programs.” McCartey, 298 F.3d at 1076. However, a VA
rating is not conclusive and “does not necessarily compel the
SSA to reach an identical result.” McLeod, 640 F.3d at 886.
An ALJ may give less weight to a VA rating “if he gives
persuasive, specific, valid reasons for doing so that are
supported by the record.” Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 695 (9th Cir. 2009) (quoting
McCartey, 298 F.3d at 1076).
1
The Appeals Council decision would not alter our reasoning in this
case even if it was properly a subject of our review. The Appeals Council
did not explain why the evidence supporting the VA disability rating was
insufficient for an award under Social Security Regulations, much less
consider the “great weight” ordinarily accorded VA ratings. McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
10 LUTHER V. BERRYHILL
In McCartey, the VA determined that McCartey was
80 percent disabled due to his depression and lower back
injury. 298 F.3d at 1076. The ALJ “did not mention [the VA
rating] in his opinion.” Id. We held “that the ALJ erred in
disregarding McCartey’s VA disability rating, and
accordingly, the Commissioner’s decision must be reversed
and remanded.” Id.; see also Hiler v. Astrue, 687 F.3d 1208,
1212 (9th Cir. 2012) (reversing ALJ who relied solely on
VA’s 2001 proposed rating changes and disregarded VA’s
1998 decision and 2002 decision that rejected 2001 proposed
changes).
In Valentine, the claimant had an initial VA disability
rating of 30 percent. 574 F.3d at 688. While his case was
pending before the ALJ, the VA increased his disability rating
to 100 percent. Id. at 689. The ALJ discussed the revised VA
rating in her decision and provided two reasons for rejecting
that rating. Id. at 695. First, the ALJ stated that “[w]hile the
VA unemployability rating resembles the Social Security
disability standard in some respects, the non-critical decision
made by the VA Decision Review Officer . . . was not an
unemployability assessment.” Id. Second, the ALJ stated that
the VA rating “was not based on a comprehensive evaluation
of the evidence available to the undersigned [ALJ].” Id. On
appeal, we found the first reason for rejecting the VA rating
invalid under McCartey, noting that an ALJ must consider a
VA rating due to “the marked similarity” between both
programs. Id. But as to the second reason, we held that the
ALJ was “justified in rejecting the VA’s disability rating on
the basis that [the ALJ] had evidence the VA did not, which
undermined the evidence the VA did have.” Id.
In this case, although the ALJ noted Luther’s VA
disability rating at the hearing and in her written decision, she
LUTHER V. BERRYHILL 11
did not address how she had considered and weighed the
VA’s rating or articulate any reasons for rejecting it. To the
contrary, the ALJ stated, “It doesn’t matter. It’s
100 percent. . . . One hundred percent disability VA has no
bearing. It’s something we consider—.” The ALJ did not
discuss the rating in her evaluation of the medical evidence
and instead merely acknowledged it in two short portions of
her decision.2 Simply mentioning the existence of a VA rating
in the ALJ’s decision is not enough. The ALJ erred because
she did not give great weight to the VA disability rating and
did not provide any persuasive, specific, and valid reasons for
rejecting it.
III.
“Remand for further proceedings is appropriate where
there are outstanding issues that must be resolved before a
disability determination can be made, and it is not clear from
the record that the ALJ would be required to find the claimant
disabled if all the evidence were properly evaluated.” Taylor,
659 F.3d at 1235 (citing Vazquez v. Astrue, 572 F.3d 586, 593
(9th Cir. 2009)). In this case, the ALJ failed to explain the
consideration she gave to the VA disability rating, if any. And
it is unclear from the record whether the ALJ would be
required to find Luther disabled after evaluating the VA
disability rating. “We note that, on remand, the ALJ is not
2
The ALJ also did not discuss the VA’s conclusion that Luther’s
urinary tract infection and degenerative disc disease were service-
connected disabilities and failed to develop the record by asking Luther
questions pertaining to these other conditions. Luther had listed
degenerative disc disease as a disability on her Social Security application.
See Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (“[T]he
ALJ has a special duty to fully and fairly develop the record and to assure
that the claimant’s interests are considered.”).
12 LUTHER V. BERRYHILL
compelled to adopt the conclusions of the VA’s decisions
wholesale, but if she deviates from final VA decisions, she
may do so based only on contrary evidence that is
‘persuasive, specific, valid’ and supported by the record.”
Hiler, 687 F.3d at 1212 (quoting McCartey, 298 F.3d at
1076).
CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s decision affirming the Commissioner’s decision and
REMAND with instructions to the district court to remand
this case to the Commissioner for further proceedings
consistent with this opinion.
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282 Md. 314 (1978)
384 A.2d 709
WADE IGLEHART JOHNSON
v.
STATE OF MARYLAND
[No. 70, September Term, 1977.]
Court of Appeals of Maryland.
Decided April 6, 1978.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.
Charles M. Carlson for appellant.
Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
LEVINE, J., delivered the opinion of the Court. MURPHY, C.J., and SMITH and ORTH, JJ., dissent. ORTH, J., filed a *316 dissenting opinion in which MURPHY, C.J., and SMITH, J., join at page 333 infra. MURPHY, C.J., filed a dissenting opinion in which SMITH and ORTH, JJ., join at page 342 infra.
We granted certiorari in this case to determine whether voluntary incriminatory statements, given after a valid waiver of Miranda rights, are nevertheless inadmissible against an accused in a criminal prosecution, when such statements were obtained by police following an "unnecessary delay" in producing the accused before a judicial officer in violation of former Maryland District Rule 709 a.[1] After a jury trial in the Circuit Court for Carroll County, appellant was convicted on charges of armed robbery, assault with intent to murder, larceny, conspiracy and unlawful use of a handgun in connection with two holdups which took place in Annapolis, Maryland during the month of January 1975.[2] An appeal was taken to the Court of Special Appeals which affirmed appellant's conviction. 36 Md. App. 162, 373 A.2d 300 (1977). Because we have concluded that the trial court erroneously admitted certain inculpatory statements of the appellant, we shall reverse and remand for a new trial.
I
The chronology of events which led to this appeal began on January 13, 1975, when a young black male matching appellant's description walked into the Rainbow Cleaners on West Street in Annapolis, pulled out a pistol and commanded Robin Woolford, a part-time counter clerk, to fill a brown paper bag with money from the cash register. After having instructed Woolford to lie down on the floor, the assailant shot him in the shoulder and then fled; Woolford was seriously wounded.
*317 Later that month, on the evening of January 24, 1975, appellant allegedly drove two men, John Leonard and Charles Wilson, to the Acme Supermarket on Solomons Island Road in Annapolis. While appellant waited outside in his automobile, Leonard and Wilson entered the market, robbed Pam Simkunas, an employee, and in the process of escaping, shot Donald Dunbar, the store manager, just grazing his shoulder. Appellant then sped away carrying his co-defendants with him.
Warrants for appellant's arrest were secured by police on January 25, 1975. Unable to locate appellant, members of the Annapolis City Police Department contacted his family for the purpose of having them persuade appellant to surrender himself voluntarily. This effort proved successful and on January 30, 1975, at 3:15 p.m., appellant turned himself in to the police. Upon his arrival at the police station, appellant was immediately taken into custody and processed (fingerprinted and photographed). No arrest warrants were served on appellant, although the record reveals that appellant was informed orally that he was under arrest "for the investigation of armed robbery" at the Acme Supermarket. Police did not at this time attempt to take appellant to a commissioner for an initial appearance.
At approximately 3:20 p.m. appellant, after receiving his first set of Miranda warnings, waived his rights by initialing a standardized police form. He was then taken to an interrogation room by Officers Selman Wallace and Thomas Brown for questioning. No sooner had the interrogation commenced than appellant began to complain of stomach pains. Officers Wallace and Brown, observing the suspect's glassy eyes, unusually moist lips and deteriorating physical appearance, broke off the investigation and offered to take appellant to the hospital. For some reason appellant changed his mind and asked permission to rest. He was then taken to a stripped-down cell in the station house lockup where he spent the remainder of the day and night.
Interrogation resumed at 9:45 a.m. on the next day, January 31, after appellant's condition had improved to some extent. Once again Officers Wallace and Brown conducted the *318 investigation, prefacing the interrogation with a recitation of the Miranda warnings. Appellant executed a written waiver and agreed to submit to questioning. This session lasted some six hours, culminating in a ten-page statement in which appellant all but confessed to his complicity in the Acme robbery. It appears that the statement was not actually signed until 3:45 p.m. on the 31st. There is no substantial evidence that this statement was coerced or elicited by deception on the part of the police.
At approximately 4:00 p.m. on the 31st, shortly after making his first statement, appellant was taken before a commissioner for the first time. At this point appellant had been in police custody for over 24 hours. It is undisputed that a commissioner had been available at all times and that his office was but a short distance from the station house. When asked at trial why appellant, after his arrest, had not been presented promptly before a commissioner, Officer Wallace replied:
"A. Because he hadn't been interrogated then, sir, and we were still investigating the case.
"Q. In other words you wanted to keep him at the Annapolis Police Department, in a detention cell there, until you had such time and opportunity to interrogate him, is that correct?
"A. And not only that, Anne Arundel County Detention Center will not admit or take anybody that is sick.
* * *
"Q. And you felt that [appellant] was sick enough then and if you took him to the Commissioner ... they wouldn't accept him?
"A. That is their policy, sir."
Returning from his appearance before the commissioner, appellant was read the Miranda warnings for a third and final time. As he had done on the two prior occasions, appellant consented to questioning and at 6:55 p.m. confessed outright *319 to the January 13th robbery and shooting at Rainbow Cleaners.
At a pretrial hearing on August 26, 1975, appellant sought to suppress the statements made to police on January 31st, arguing that they were obtained in contravention of former District Rules 706 and 709 a. Alternatively, appellant contended that the confessions were tainted by the illegal delay in presentment before a judicial officer and therefore inadmissible on the authority of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).[3] Rejecting these theories, the trial court overruled appellant's objections and admitted the statements.
II
Long before the adoption of the Maryland District Rules, this Court had held that police officers were under a common law duty "to convey the prisoner in a reasonable time and without unnecessary delay before a magistrate." Kirk & Son v. Garrett, 84 Md. 383, 407, 35 A. 1089 (1896); Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286, 19 L.R.A. 632 (1893). See also Blackburn v. Copinger, 300 F. Supp. 1127, 1140 (D. Md. 1969), aff'd per curiam, 421 F.2d 602 (4th Cir.), cert. denied, 399 U.S. 910 (1970); Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 130-31 (1941). Invoked primarily in the context of civil actions for false imprisonment, this doctrine portended the enactment of legislation guaranteeing detainees the right to prompt presentment in Baltimore City and Montgomery County.[4]
*320 It was not until July 1971, however, with the adoption of the predecessor to M.D.R. 723 a by this Court that the right to speedy production before a judicial officer was secured to defendants on a uniform statewide basis. As originally drafted, M.D.R. 723 a closely paralleled Rule 5(a) of the Federal Rules of Criminal Procedure, requiring the presentment of an accused before a judicial officer "without unnecessary delay." See also Uniform Rule of Criminal Procedure 311. In response to comments from state and local law enforcement officials, however, the proposed rule was modified to incorporate a presumption of illegality, which applies whenever an arrestee is detained by police beyond 24 hours or the first session of court following arrest without having been taken to a judicial officer. See 2 G. Liebmann, Maryland District Court Law and Practice § 941, at 142 (1976). Presumably, where the delay is less than the prescribed maximum, the rule anticipates that a determination as to the necessity and reasonableness of the delay will be made by courts on a case-by-case basis. No provision is made for the imposition of sanctions against police who violate the rule.
III
The State, echoing the reasoning of the Court of Special Appeals, Johnson v. State, 36 Md. App. at 172, contends that the provisions of M.D.R. 723 a are directory only being mere guidelines for the disposition of criminal defendants upon arrest. In its entirety Maryland District Rule 723 a provides:
"A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant's arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed."
*321 That M.D.R. 723 a was intended to be mandatory is evidenced in the first instance by the express terms of the rule itself. The rule declares in unequivocal language that a "defendant shall be taken ... without unnecessary delay" to a judicial officer following arrest. (emphasis added). We have stated on numerous occasions that in the absence of a contrary contextual indication, the use of the word "shall" is presumed to have a mandatory meaning, Moss v. Director, 279 Md. 561, 564-65, 369 A.2d 1011 (1977), and thus denotes an imperative obligation inconsistent with the exercise of discretion. Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169, 338 A.2d 248 (1975).
But we need not rely exclusively on principles of statutory construction to justify our conclusion that M.D.R. 723 a lays down a compulsory rule for police conduct. In interpreting the rules of criminal procedure, our practice has been to avoid semantic nicety and to adopt that interpretation which will best implement the policies underlying the particular rule. Johnson v. State, 274 Md. 29, 41, 333 A.2d 37 (1975); Brown v. State, 237 Md. 492, 504, 207 A.2d 103 (1965).
The principle of prompt presentment embodied in M.D.R. 723 a has been described as a sine qua non in any scheme of civil liberties. Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 27 (1958). In Maryland, as elsewhere, the purpose of the rule is to insure that an accused will be promptly afforded the full panoply of safeguards provided at the initial appearance.
To comprehend fully the central importance of the prompt presentment requirement, it is first necessary to examine briefly the role played by the initial appearance in our system of justice. The procedural components of the initial appearance are set forth in M.D.R. 723 b. Chief among these protections is the constitutionally compelled requirement of M.D.R. 723 b 4 that all persons arrested without a warrant be afforded a prompt hearing at which a neutral judicial officer must determine whether sufficient probable cause exists for the continued detention of the defendant. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); and see Note, 5 U.Balt.L.Rev. 322 (1976). Of equal *322 importance is the provision of M.D.R. 723 b 3 obligating a commissioner at the initial appearance to make a determination of the defendant's eligibility for pretrial release under M.D.R. 721.
A third function of the initial appearance is to inform the accused of every charge brought against him and to inform him of his right to counsel, and, if indigent, to have counsel appointed for him. M.D.R. 723 b 1; M.D.R. 723 b 2; M.D.R. 711 a. Further, where the defendant has been charged with a felony over which the District Court lacks subject matter jurisdiction, the commissioner conducting the initial appearance must notify the accused of his right under M.D.R. 727 to request a full preliminary hearing. Code (1957, 1976 Repl. Vol.) Art. 27, § 592; M.D.R. 723 b 5. If such a request is forthcoming, the commissioner must assign a date and time for the preliminary hearing. M.D.R. 723 b 6. Finally, where the crime is one within the District Court's jurisdiction, the presiding judicial officer must fix the date for trial. Id.
The procedural requirements of M.D.R. 723 b bolster in substantial fashion several fundamental constitutional guarantees, including the right of a defendant to be informed of the accusation against him, Maryland Declaration of Rights, Art. 21; the right to be free from unauthorized and unreasonable seizures of his person, U.S. Const., amends. IV and XIV; Gerstein v. Pugh, 420 U.S. at 114; the right to be allowed counsel, Declaration of Rights, Art. 21, and to have counsel appointed for him if indigent, U.S. Const., amends. VI and XIV; Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), as well as the due process right to be free from coercive investigatory methods. Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936).
Significantly, only one state in the union has construed its prompt presentment statute to be merely directory. Wilson v. State, 258 Ark. 110, 522 S.W.2d 413, 414, cert. denied, 423 U.S. 1017 (1975). We decline to follow this view. To hold, as the State urges, that compliance with the prompt presentment requirement of M.D.R. 723 a is purely discretionary with the police, would, in our opinion, be to *323 erode severely the system of procedural guarantees designed to insure fair treatment of criminal defendants from the time of arrest to the time of trial. Prompt presentment after arrest assures impartial judicial supervision of the defendant's rights at the earliest possible stage of detention. Accordingly, we hold that the prompt presentment requirement of M.D.R. 723 a is mandatory and was therefore binding on the police in the instant case.
IV
We now determine what effect the violation of Rule 723 a should have on the admissibility of evidence obtained during the period of unnecessary delay. Appellant urges us to fashion a per se exclusionary rule similar to that enunciated by the Supreme Court in Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948), and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). According to the so-called McNabb-Mallory rule, any statement obtained from an arrestee during a period of unnecessary delay in producing him before a magistrate in contravention of Federal Criminal Rule 5(a) is inadmissible at trial, irrespective of whether it was given voluntarily or not. Upshaw v. United States, 335 U.S. at 413. See generally 1 C. Wright, Federal Practice and Procedure (Criminal) §§ 72-75 (1969).
The Supreme Court has itself acknowledged that the McNabb-Mallory rule is not derived from the Constitution, but rather is the product of the exercise of the Court's supervisory authority over the administration of criminal justice in the federal courts. McNabb v. United States, 318 U.S. at 341. But see Williams v. State, 264 Ind. 664, 348 N.E.2d 623, 629 (1976); C. McCormick, Handbook of the Law of Evidence § 155, at 340 (2d ed. 1972). Consequently, the rule is not binding on the states. Culombe v. Connecticut, 367 U.S. 568, 600-601, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Cox v. State, 192 Md. 525, 536, 64 A.2d 732 (1949).
Critics of McNabb-Mallory argue that while some incentive should be given law enforcement officials to obey the prompt *324 production requirement, the exclusion of confessions, statements and other evidence obtained in derogation of the rule, "is too high a price for society to pay for this type of `constable's blunder.'" Omnibus Crime Control and Safe Streets Act of 1968, S. Rep. No. 1097, 90th Cong., 2d Sess. 38, reprinted in [1968] U.S. Code Cong. & Ad. News 2112, 2124. See also Hendrickson v. State, 93 Okla. Crim. 379, 229 P.2d 196, 211 (1951); State v. Gardner, 119 Utah 579, 230 P.2d 559, 563-64 (1951). They argue that the rule results in the release of criminals whose guilt is virtually beyond question and causes undue complications in the conduct of criminal trials. S. Rep. No. 1097, 90th Cong., 2d Sess. 40, reprinted in [1968] U.S. Code Cong. & Ad. News 2112, 2125-26. See United States v. Ceccolini, U.S., 98 S.Ct. 1054, 1061, 55 L.Ed.2d 268 (1978).
Not surprisingly, then, the vast majority of state courts passing on the question have rejected McNabb-Mallory outright, opting instead for a traditional due process voluntariness test of the admissibility of confessions.[5] According to this view, a statement extracted from an arrestee in violation of his right to prompt presentment is not ipso facto inadmissible. Rogers v. Superior Court of Alameda County, 46 Cal.2d 3, 291 P.2d 929, 933 (1955). Rather the delay is considered a relevant factor in evaluating the overall voluntariness of the confession. People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433, 436 (1968). A statement is deemed voluntary if, when examined in light of the totality of circumstances surrounding its utterance, it has *325 not been "extracted by any sort of threats or violence, nor obtained by any direct or implied promises, ... nor by the exertion of any improper influence." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); and see State v. Kidd, 281 Md. 32, 35-36, 375 A.2d 1105, cert. denied, 98 S.Ct. 646 (1977).
The State exhorts us to join the majority and apply a voluntariness standard to statements obtained in violation of M.D.R. 723 a. We decline to do so. To say that an unlawful postponement of the initial appearance may be merely a factor in assessing the admissibility of a statement, is to imply that an unnecessary delay may be overlooked entirely if other indicia of voluntariness exist. Under this analysis, even a gross violation of the presentment requirement can be disregarded altogether. See, e.g., Reeves v. Commonwealth, 462 S.W.2d 926 (Ky.), cert. denied, 404 U.S. 836 (1971) (4-day delay in presentment did not affect admissibility); State v. Williams, 369 S.W.2d 408 (Mo. 1963) (10-day delay). Despite its relatively popular acceptance, therefore, the voluntariness standard is a hopelessly inadequate means of safeguarding a defendant's right of prompt presentment.
Voicing their disenchantment with the voluntariness standard, several states have elected in recent years to adopt a per se exclusionary rule in order to combat what many perceive to be an increase in the number of flagrant violations of the prompt production requirement. Webster v. State, 59 Del. 54, 213 A.2d 298, 301 (1965); Vorhauer v. State, 59 Del. 35, 212 A.2d 886, 892 (1965); Larkin v. United States, 144 A.2d 100, 103 (D.C. App. 1958); Oliver v. State, 250 So.2d 888, 889 (Fla. 1971); (but see State v. Roberts, 274 So.2d 262, 264 (Fla. App.), rev'd on other grounds, 285 So.2d 385 (Fla. 1973)); State v. Benbo, Mont., 570 P.2d 894, 900 (1977); Commonwealth v. Davenport, 370 A.2d 301, 306-307 (Pa. 1977). See State v. Vollhardt, 157 Conn. 25, 244 A.2d 601, 607 (1968) (construing statutory codification of Mallory rule); and see People v. Williams, 68 Cal. App.3d 36, 137 Cal. Rptr. 70, 75 (1977) (adopting per se rule with respect to line-up identification evidence, but retaining voluntariness standard for confessions).
*326 These courts recognize, despite sharp criticism from some quarters, see, e.g., Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting), that the exclusionary rule is perhaps the most effective and practical means of curbing lawless police conduct when it impinges upon fundamental legal and constitutional rights of a criminal defendant. Vorhauer v. State, 212 A.2d at 893; People v. Carbonaro, 234 N.E.2d at 438 (Fuld, C.J., dissenting); see Brown v. Illinois, 422 U.S. at 599-600. The theory behind the rule is that by refusing to admit evidence obtained as a result of illegal conduct, courts will "instill in ... particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused." Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). There is reason to believe that the exclusionary rule is an especially effective deterrent when invoked with respect to in-custody interrogations, since police activity at this stage in the investigation is likely to be aimed at procuring evidence for use at trial. Model Code of Pre-Arraignment Procedure § 150.3, Commentary, at 397 (1975). See Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 722 (1970).
While deterrence of future police misconduct is the primary function of the exclusionary rule, United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); Note, 62 Cornell L. Rev. 364, 372 (1977), the suppression of illegally obtained evidence is also said to prevent the debasement of the judicial process by insuring that courts do not become "accomplices in willful disobedience of law." McNabb v. United States, 318 U.S. at 345; Olmstead v. United States, 277 U.S. 438, 483, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). See Comment, Judicial Integrity and Judicial Review: An Argument for Expanding the Scope of the Exclusionary Rule, 20 U.C.L.A.L.Rev. 1129, 1163-64 (1973). But cf. Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ("While courts ... must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence").
*327 Arguing that an exclusionary rule would sweep too broadly, the State urges our adoption of two more tempered variations of the per se rule. Under the State's first variant, a confession or statement would be suppressed only if the defendant could demonstrate that he was unfairly prejudiced by reason of police failure to obey the prompt presentment rule. People v. Hosier, 186 Colo. 116, 525 P.2d 1161, 1164 (1974); State v. Johnson, 222 Kan. 465, 565 P.2d 993, 1000-1001 (1977). Prejudice is said to exist when the purpose of the delay was solely to extract, "squeeze out" or "sew up" a confession or culpable statement to assure a finding of guilt. People v. White, 392 Mich. 404, 221 N.W.2d 357, 366 (1974), cert. denied, 420 U.S. 912 (1975); Briggs v. State, 76 Wis.2d 313, 251 N.W.2d 12, 17 (1977); Raigosa v. State, 562 P.2d 1009, 1015 (Wyo. 1977).
This approach, in our view, is merely a reformulation of the voluntariness test. Furthermore, the prejudice test would encumber the defendant with the well-nigh insurmountable burden of showing that detention was deliberately prolonged in order to extract a confession. In our view a defendant suffers prejudice whenever a statement procured during an illegal delay is used against him at trial or leads directly to other evidence ultimately employed to convict him. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417, 419 (1972). Accord, State v. Benbo, 570 P.2d at 900.
The State's second alternative would be to apply the exclusionary rule only where the police have committed a substantial violation of the prompt presentment rule. This approach is similar to a proposal recently propounded by the American Law Institute in its Model Code of Pre-Arraignment Procedure § 150.3 (1975). Under the Model Code, statements may be suppressed only if the violation of the prompt presentment provision 1) was gross, wilful and prejudicial to the accused; or 2) was of a kind likely to mislead the accused as to his legal rights or to have influenced the defendant's decision to make the statement; or 3) created a significant risk of untrustworthiness. While the ALI scheme does offer more in the way of protection than the traditional voluntariness standard, we believe that, as currently *328 formulated, the "substantiality test" might conceivably encourage evasion of the requirements of M.D.R. 723 a, rather than deter such conduct. Moreover, adoption of an ALI-type test would significantly and unnecessarily complicate and confuse admissibility determinations by requiring trial courts to apply criteria which are themselves not susceptible of precise definition.
In our opinion the protection of the right of an accused to prompt production before a judicial officer following arrest will be most effectively accomplished by a per se exclusionary rule. Not only is such a rule calculated to deter unlawful detentions and to preserve the integrity of the criminal justice system, but it is likely to assure more certain and even-handed application of the prompt presentment requirement and will provide to trial courts, the bar and law enforcement officials greater guidance as to the permissible limits of custodial interrogation prior to an initial appearance. Commonwealth v. Davenport, 370 A.2d at 306.
Conceivably, application of this rule may in rare instances culminate in the release of potentially guilty defendants; nevertheless, on balance the rights secured directly or indirectly by M.D.R. 723 a are too vital to be ignored or compromised in the name of social expediency. Hogan & Snee, supra, 47 Geo. L.J. at 23.
"The prohibition ... against any unnecessary delay between an arrest by an accusatorial authority and a preliminary arraignment minimizes the possibility of any unnecessary abridgement of a citizen's liberty. Such an abridgement would, of course, be unconstitutional. The danger of any such unnecessary and unconstitutional restriction of liberty diminishes significantly when a citizen is brought swiftly before a neutral judicial authority...." Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613, 614 (1973).
We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, *329 thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution's case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay. Where, however, the delay in presentment falls within the outer limits established by M.D.R. 723 a, it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case. Examples of necessary delay might include those required: 1) to carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; 2) to determine whether a charging document should be issued accusing the arrestee of a crime; 3) to verify the commission of the crimes specified in the charging document; 4) to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime. Mallory v. United States, 354 U.S. at 454-55; Uniform Rule of Criminal Procedure 311; Model Code of Pre-Arraignment Procedure § 130.2(2)(b) (1975).
We note also that a truly spontaneous "threshhold" confession or statement uttered at the time of arrest or shortly thereafter would not be excludible on the grounds that police subsequently failed to act diligently in complying with M.D.R. 723 a. In such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply. United States v. Mitchell, 322 U.S. 65, 70, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); United States v. Seohnlein, *330 423 F.2d 1051, 1053 (4th Cir.), cert. denied, 399 U.S. 913 (1970); 1 C. Wright, Federal Practice and Procedure (Criminal) § 73, at 79-80 (1969).
In the case at hand, police held appellant for just over 24 hours after his arrest, and this despite the availability of a commissioner at all times on January 30 and 31, 1975. What is more, the evidence established that police deliberately postponed presentment of appellant for the purpose of subjecting him to further interrogation. Under our holding announced here, appellant's first inculpatory statement (concerning the Acme Supermarket robbery), signed shortly prior to his initial appearance before a commissioner on the afternoon of the 31st, was inadmissible per se, since it was given during the period of delay in presentment which extended beyond 24 hours and long after the first session of court following the arrest.
Appellant's second statement, admitting responsibility for the Rainbow Cleaners holdup and shooting, which was given almost immediately upon appellant's return from the commissioner on January 31, should likewise have been suppressed. We cannot say, on the record before us, that the second confession was an independent act, occurring after time for deliberate reflection and therefore free from the taint of the preceding illegal detention. In sum, then, unless appellant waived his right to prompt presentment before a judicial officer, both statements implicating him in the crimes of January 13 and 24, should have been excluded from evidence, having been obtained in clear violation of M.D.R. 723 a.
V
The State's final contention is that by thrice waiving his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant also waived any right he may have had under M.D.R. 723 a to be brought promptly before a judicial officer. The argument posited by the State has won acceptance in at least two federal appellate circuits and the District of Columbia. Pettyjohn v. United States, 419 F.2d 651, 656 (D.C. Cir.1969), *331 cert. denied, 397 U.S. 1058 (1970); United States v. Indian Boy X, 565 F.2d 585, 591 (9th Cir.1977); Matter of F.D.P., 352 A.2d 378, 382 (D.C. App. 1976). See also People v. Hosier, 525 P.2d at 1164; State v. Roberts, 274 So.2d 262, 265 (Fla. App.), rev'd on other grounds, 285 So.2d 385 (Fla. 1973); Richmond v. State, 554 P.2d 1217, 1229 (Wyo. 1976).
Proponents of this view assert that the purpose behind the McNabb-Mallory rule, at least in part, is to protect indigent and illiterate defendants against the coercive conditions of custodial interrogation. Thus, it is said, the rule indirectly vindicates an accused's Fifth Amendment privilege against self-incrimination, which is precisely what the Supreme Court sought to protect by means of the prophylactic rule announced in Miranda. See 8 J. Moore, Federal Practice ¶ 5.02[2], at pp. 5-15 to 5-16 (2d ed. 1977). Therefore, since the Miranda warnings provide an accused with the same protection he would receive under McNabb-Mallory, it follows that a waiver of one's Miranda rights should also operate as a waiver of the right to an immediate judicial warning of constitutional rights under Mallory. Frazier v. United States, 419 F.2d 1161, 1167 (D.C. Cir.1969).
This argument in our opinion is based on a false premise, that Miranda and the prompt presentment requirement share a common purpose. The fact of the matter is that Miranda was never intended to supplant the Mallory rule, as the Supreme Court itself acknowledged in the Miranda opinion. Miranda v. Arizona, 384 U.S. at 463 n. 32. One jurist has commented that it is unsound to treat Miranda and Mallory as closely related, since the former is a qualitative test of the circumstances of the interrogation, while the latter focuses on the duration of time delay. Frazier v. United States, 419 F.2d at 1171 (Burger, J., dissenting).
To be sure, one important function of the initial appearance is to advise an arrestee of his right to counsel; to this extent there is a partial overlap with Miranda. Even so, it has been convincingly argued that the typically perfunctory reading of Miranda warnings by police at the time of arrest may be insufficient to provide the accused with adequate notice of his constitutional rights; and that a need exists for follow-up *332 advice of the basic right to counsel by a neutral officer of the court, such as is provided by M.D.R. 723 b 2. Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701, 703 (1973). Note, 79 Dick. L. Rev. 309, 348 (1975).
But, as we have previously observed, the initial appearance affords a defendant considerably more than a supplementary warning of his right to counsel. Additional protections include the right to be notified of all charges brought by the State, and the right to a hearing on the defendant's eligibility for pretrial release and court-appointed counsel. What is more, defendants arrested without a warrant are entitled to a constitutionally mandated probable cause determination. Such matters lie outside the scope of Miranda and are the exclusive responsibility of the judicial officer presiding at the initial appearance.
In light of the dissimilar functions performed by the two rules, we can only conclude that a waiver of Miranda rights by an accused does not automatically waive his right to a prompt initial appearance under M.D.R. 723 a. Accord, United States v. Erving, 388 F. Supp. 1011, 1020-21 (W.D. Wis. 1975); State v. Benbo, 570 P.2d at 899. Of course, a defendant may specifically waive his right to prompt presentment, provided such waiver is knowingly and intelligently made. See State v. McKay, 280 Md. 558, 572-74, 375 A.2d 228 (1977). Since the record in the present case reveals no indication that appellant ever effectively consented to a deferment of his initial appearance, we hold that his rights under M.D.R. 723 a were not validly waived.
Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to reverse the judgment of the Circuit Court for Carroll County and to remand for a new trial.
Costs to be paid by Anne Arundel County.
*333 Orth, J., dissenting:
At the time of the arrest of Wade Iglehart Johnson (appellant), Maryland District Rule 709 a, now M.D.R. 723 a,[1] provided:
"A defendant shall be taken before a conveniently available judicial officer without unnecessary delay and in no event later than the earlier of (1) twenty-four hours after arrest or (2) the first session of court after the defendant's arrest upon a warrant, or, where an arrest has been made without a warrant, the first session of court after the charging of the defendant. Such charging shall take place promptly after arrest."
A majority of this Court holds today:
"[A]ny statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution's case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, *334 irrespective of the reason for the delay. Where, however, the delay in presentment falls within the outer limits established by M.D.R. 723 a, it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case."
I am in complete disagreement with this holding.
I
We have long recognized the common law duty of police officers "to convey the prisoner in a reasonable time and without unnecessary delay, before a magistrate...." Kirk & Son v. Garrett, 84 Md. 383, 407, 35 A. 1089 (1896); Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286 (1893). We have never held, however, that a violation of the duty, in itself, was sufficient to exclude from evidence any statement, voluntary or otherwise, obtained by the police.
When the Municipal Court of Baltimore City was created in 1961, the legislature provided: "Whenever any person shall be arrested in the City of Baltimore upon any criminal charge ... it shall be the duty of the police officer or constable making such arrest, or in whose custody the person arrested may be, to take such person before a judge of the criminal division of the Municipal Court of Baltimore City...." Code (1957, 1966 Repl. Vol.) Art. 26, § 115 (repealed 1972).[2] We discussed § 115 in Taylor v. State, 238 Md. 424, 431-432, 209 A.2d 595 (1965). We rejected the argument that the statute required that an arrestee be taken before one of the judges of the Municipal Court immediately after his arrest. We observed: "No time limit is set in the Section as to when it is compulsory that an arrested person be taken before one of *335 the judges; and no mention is made to the effect that a failure to take such a person before one of the judges by a specified time shall render a voluntary confession inadmissible. Had the Legislature so intended, it would have been a very simple task to manifest such intention." Id. at 432. We held: "[T]he failure to take the [arrestee] before a judge of the Municipal Court prior to his confession did not render them inadmissible." Id. at 432. See Metallo v. State, 10 Md. App. 76, 79-80, 267 A.2d 804, cert. denied, 259 Md. 734 (1970) in which the Court of Special Appeals pointed out that the statute provided no sanctions for failure to comply with its provisions. The court in Blackburn v. Copinger, 300 F. Supp. 1127, 1140-1142 (D. Md. 1969), aff'd, 421 F.2d 602, cert. denied, 399 U.S. 910 (1970), declared that the statute clearly did not permit the police to interrogate a suspect against whom they may have no evidence of any legal force for an indeterminate period of time. It said: "If Blackburn were a federal prisoner, the violation by the police of their duty to bring him before a judicial officer would by itself result in the inadmissibility of his confession. This per se rule has not been held to apply to criminal prosecutions in state courts. But in assessing whether Blackburn's confession was voluntary, his detention contrary to the explicit law of Maryland is an important factor." Id. at 1142.
Code (1957, 1972 Repl. Vol.) Art. 52, § 97 (h) (repealed in 1972), applicable to Montgomery County, provided inter alia: "Each arrested person shall be taken before such committing magistrate[3] immediately following arrest without delay." In Murphy v. State, 8 Md. App. 430, 260 A.2d 357 (1970) the Court of Special Appeals, speaking through Chief Judge Murphy, now Chief Judge of this Court, characterized a challenge to a statement obtained in violation of the statute as not one in the constitutional sense, but rather one "through application of a non-constitutional exclusionary rule of evidence similar to that fashioned by the Supreme Court in Mallory v. United States, 354 U.S. 449 [, 77 S.Ct. *336 1356 (1957)], i.e., that the sanction to be applied for failure of the police to immediately bring an arrested person before a committing magistrate ... was exclusion of any post-arrest statements made from evidence." Id. at 436. The intermediate court held that the trial judge properly overruled this ground of objection to the admissibility of the statement. In Jackson v. State, 8 Md. App. 260, 269, 259 A.2d 587 (1969), cert. denied, 257 Md. 734 (1970), the Court of Special Appeals said by way of dicta that as the statute failed to provide any sanctions for non-compliance, the intent of the legislature was not to embrace the sanctions applied by the Supreme Court in Mallory which were not controlling as to prosecution in the state courts. See Cox v. State, 192 Md. 525, 536, 64 A.2d 732 (1949).
Public Local Laws of Baltimore City formerly made it the duty of a police officer or constable making an arrest or having custody of a person arrested to take the arrestee before a Justice of the Peace. Baltimore City Code of Pub. Loc. L. (1938) Art. 4, § 742. Section 916 of the article required that "[a]ll persons arrested in the daytime under the provisions of this sub-division of this Article shall be taken by the officer making the arrest immediately before the nearest Police Justice for examination, except that all females and male children under fourteen years of age who may be arrested or taken into custody shall be taken before the nearest Police Justice for examination when there shall be matrons at the stationhouse as hereinafter provided."[4] In Grear v. State, 194 Md. 335, 71 A.2d 24 (1950) Grear was arrested in Baltimore City and held, without being taken before a magistrate, although one was available, from nine o'clock Sunday morning until four o'clock Monday afternoon, and a confession was obtained from him while he was so held. Grear contended that he was unlawfully held in violation of the local laws and that his confession was therefore inadmissible. We saw no material difference, in the circumstances, between § 742 and § 916. The Court believed *337 that "[o]ne reason, if not the only reason [why Grear was not immediately taken before a magistrate] was the desire to get a confession first." Id. at 348. It recognized that "[l]ack of sufficient evidence to hold [an arrestee] could not be a valid or pertinent reason. Lack of evidence to hold him lawfully manifestly could not justify holding him unlawfully." Id. at 348. It made clear, however, that it did not mean to suggest "that in any case a duty to take a person arrested immediately before a magistrate for examination implies a right to be immediately discharged unless the State then and there produces testimony which would be sufficient to hold the prisoner after a full preliminary hearing or a full hearing on habeas corpus." Id. at 348-349. The Court found that Cox v. State, 192 Md. 525, 64 A.2d 732 (1949) and James v. State, 193 Md. 31, 65 A.2d 888 (1949) were dispositive:
"In the Cox case (followed in the James case) we held that the fact that evidence has been obtained unlawfully does not necessarily make it inadmissible, and that unless the facts show that the illegal arrest in itself constituted such duress as to make the confession involuntary, the same rule as to admissibility of the confession is applicable as where the arrest is legal." Id. at 349.[5]
It held that the test for the admissiblity of the confession was whether it was voluntarily given in the circumstances and was "the product of the suction process of interrogation" as to be "the reverse of voluntary." Id. at 349-351. See Edwards v. State, 194 Md. 387, 391-393, 71 A.2d 487 (1950). In White v. State, 201 Md. 489, 94 A.2d 447 (1953), it was claimed that White had been held for such a length of time before being taken before the magistrate as to make his confession involuntary and to affront his constitutional rights. Hammond, J., speaking for a unanimous Court, said:
"This contention has been so recently made and so fully answered in James v. State, 193 Md. 31, 65 A. *338 2d 888; Grear v. State, 194 Md. 335, 71 A.2d 24; and Edwards v. State, 194 Md. 387, 71 A.2d 487, in exhaustive and penetrating analyses of the law and the cases that we do not feel it is necessary, desirable, or appropriate to refish these waters. Suffice it to say that a very careful consideration of all of the circumstances of this case, both as to the manner in which the confession was obtained and the length of time during which the accused was held, leads us to believe that there is less possibility of injury to, or deprivation of, his constitutional rights than in the similar cases just cited." Id. at 493.
It is manifest that this Court consistently adhered to the view that a violation of the duty to take an arrestee immediately before a magistrate whether imposed by the common law or by statute did not per se render a confession inadmissible, its admissibility being determined under the voluntariness standard.
II
Upon the creation of the District Court of Maryland in 1971, this Court adopted rules for its governance. It was then, through M.D.R. 709, effective 5 July 1971, that, over and above the common law duty, the right to speedy production before a judicial officer was secured to arrestees on a uniform statewide basis. "As originally proposed, the rule would have directly tracked the provisions of Rule 5 (a) of the Federal Rules of Criminal Procedure which as construed constitutes the so-called Mallory Rule. The language of the first sentence of M.D.R. 709 (a) following `without unnecessary delay' was added to supply an interpretive gloss following vigorous objection to the earlier draft by Police Commissioner Pomerleau of Baltimore City and by the State's Attorneys' Association." 2 G. Liebmann, Maryland District Court Law and Practice (hereinafter referred to as Liebmann) § 941, at 142 (1976).[6]See Mallory v. United States, 354 U.S. 449, 77 S. *339 Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943).
The majority holds that the prompt presentment requirement of M.D.R. 723 a is mandatory. I am in accord with that holding, but not with all the reasons advanced to support it. I think that the express terms of the rule itself, declaring in unequivocal language that a "defendant shall be taken ... without unnecessary delay" to a judicial officer following arrest is sufficient in itself to denote an imperative obligation inconsistent with the exercise of discretion. Moss v. Director, 279 Md. 561, 564-565, 369 A.2d 1011 (1977); Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169, 338 A.2d 248 (1975). I see no need to go further. The alternative reason presented by the majority suggests, at the least, constitutional overtones which were not intended by this Court in adopting the rule. It is true that the rule provides procedures whereby a person taken into custody is afforded the opportunity to be informed of and receive the benefit of certain rights, for example, advice as to the charges, right to counsel and preliminary hearing, and determinations with respect to pretrial release and probable cause. But the rule, like its counterpart in the federal system, is not derived from the federal or state constitutions beyond being the product of the exercise of the Court's supervisory authority over the administration of criminal justice. See McNabb v. United States, 318 U.S. at 341, Cox v. State, 192 Md. at 536.
III
Accepting that the rule is mandatory, it does not follow that a violation of it automatically operates to exclude a statement *340 voluntarily obtained. Had we so intended, an intention incidentally which would have been contrary to our prior decisions, it would have been a very simple task to manifest such intention. But the rule we adopted provides no sanctions for its violation.
The per se exclusionary rule adopted by the majority bestows full constitutional import to the right of an arrestee to be promptly taken before a judicial officer. It makes the right the equivalent of the constitutional prohibitions against unreasonable searches and seizures and self-incrimination. But the rule itself, regardless of the purpose it serves, lacks the constitutional basis which emerged from the Fourth Amendment's ban against unreasonable searches and seizures and the Fifth Amendment's ban against self-incrimination which justified the exclusionary rule for a violation of them. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961).
The per se exclusionary rule today adopted by this Court, is, as the majority observes, contrary to decisions of "the vast majority of state courts" and the present trend of federal courts, see footnote 5 of the majority opinion. As we have seen, it departs from the prior decisions of this Court relating to the issue. Moreover Liebmann, § 941, at 142, cautions:
"The partial tracking of the language of the federal rule and the grounds urged for [the] modification [of M.D.R. 709 a] should not be taken as implying that a statement obtained by police during a period of delay not authorized by the rule would be excludable even though it otherwise meets Miranda standards since this possibility was not discussed when the rule was drawn."
If the possibility was discussed when the rule was recently revised, no resolution of the issue is reflected in M.D.R. 723 a as adopted.
The primary function of the exclusionary rule is the deterrence of future police misconduct. United States v. *341 Janis, 428 U.S. 433, 446, 96 S.Ct. 3021 (1976).[7] That function is ill served here. In my opinion, to exclude a voluntary confession from evidence merely because a police officer has presented an arrestee before a judicial officer a fraction of a second too late under the mandate of the rule, no matter what the reason, debases the judicial process. It is so patently against the interest of the general public and the sensible administration of criminal justice that I am not the least bit persuaded otherwise by the arguments advanced by the majority. "There is no war between the Constitution and common sense," Mapp, 367 U.S. at 657, but the adoption of a per se exclusionary rule as the sanction for violation of Rule 723 a certainly does not recognize this.
I cannot dispute the majority's belief that "the protection of the right of an accused to prompt production before a judicial officer following arrest will be most effectively accomplished by a per se exclusionary rule." But the most effective protection of a non-constitutional right of an accused is not the sole goal of criminal justice. There is also to be considered the protection of the right of society to have a person who has committed offenses against it answer for his acts according to the law of the land. The public good is not always enhanced by punishing the police for a procedural deficiency. In United States v. Ceccolini, U.S., 98, S.Ct. 1054, decided 21 March 1978 [67 L.W. 4229, 4232, 21 March 1978], the Supreme Court of the United States expressly reaffirmed an observation it made a half a century ago:
"`A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule.' McGuire v. United States, 273 U.S. 95, 99 (1927)."
In short, I would not adopt a rule which requires that we reverse the judgment of the Court of Special Appeals and *342 award a new trial for no other reason than that the police were 45 minutes late in presenting Johnson before a judicial officer.
Chief Judge Murphy and Judge Smith authorize me to state that they join in the views expressed herein.
Murphy, C.J., dissenting:
The Court today holds that a confession to crime, voluntarily made by an accused person afforded the full panoply of Miranda warnings, is nevertheless inadmissible in evidence if it was made during a period of "unnecessary delay" in bringing the accused before a judicial officer in violation of former M.D.R. 709 a, now M.D.R. 723 a. In so concluding, the Court has not only adopted a position concededly at variance with the overwhelming weight of authority in the country, but has overruled, sub silentio, long-established and well-considered Maryland law to the contrary. The action taken by the Court will result in the exclusion of highly probative and reliable evidence and will most assuredly have a devastating impact on the administration of criminal justice in Maryland. Were the result reached by the Court mandated by the federal or state constitutions, or otherwise required by the prevailing law, I would, of course, unhesitatingly join in the Court's opinion. Since it plainly is not, I most respectfully dissent.
M.D.R. 709 a requires that an arrested person shall be brought before a judicial officer "without unnecessary delay" but in any event not later than the earlier of the first session of court after arrest or 24 hours. When the earlier of either of these outer limits is exceeded, the rule adopted by the Court would automatically exclude from evidence a confession made at any time thereafter, irrespective of the reason for the delay. The Court's per se exclusionary rule applies as well without regard to these prescribed maximum limits, since it operates to exclude any statement made during any period of delay in prompt presentment following arrest if the delay, irrespective of its length or the reason for it, was "unnecessary."
As the majority readily acknowledges, the per se exclusionary rule is not constitutionally mandated but derives *343 from an exercise by the Supreme Court of the United States of its supervisory authority over the lower federal courts. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, decided in 1943; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, decided in 1948; and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, decided in 1957, collectively make clear that it was the Supreme Court's view that the right of an accused person to prompt presentment before a judicial officer following arrest would be most effectively protected by a rule which automatically excluded from evidence confessions obtained during a period of "unnecessary delay" in presenting the accused for arraignment. Defining just what delay in presenting an arrested person before a judicial officer was "unnecessary" predictably caused great problems to courts required to grapple with such a vague and elusive concept. Because the rule was neither sensible nor clear, because it was unrealistic in application, unworkable in practice, and led to widely varying results, almost all states, including Maryland, rejected it. Indeed, language in Mallory itself has fostered confusion as to what constitutes "unnecessary delay," particularly delay for the purpose of additional police investigation. Mallory states at one point that arraignment should take place "as quickly as possible"; yet the Court also said:
"The duty enjoined upon arresting officers to arraign `without unnecessary delay' indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession." 354 U.S. at 455.
In apparent recognition of the uncertainty which followed in the wake of its adoption of the McNabb-Mallory rule, the *344 Supreme Court observed in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961):
"The McNabb Case was an innovation which derived from our concern and responsibility for fair modes of criminal proceeding in the federal courts. The States, in the large, have not adopted a similar exclusionary principle. And although we adhere unreservedly to McNabb for federal criminal cases, we have not extended its rule to state prosecutions as a requirement of the Fourteenth Amendment." 367 U.S. at 600-01 (footnotes omitted).
The "unnecessary delay" formulation of McNabb-Mallory provides no guidelines with respect to the limits of permissible custodial interrogation prior to presentment, as the experience of the federal courts so graphically demonstrates. For example, an interrogation of eight hours following arrest was held not to constitute unnecessary delay in United States v. Vita, 294 F.2d 524 (2d Cir.1961), cert. denied, 369 U.S. 823 (1962), the court stating:
"We cannot agree with the appellant that federal law enforcement officers are so rigidly confined by Federal Rule of Criminal Procedure 5(a) that they must, immediately upon `arrest,' cease all interrogation and formally charge the accused before a committing magistrate. Such an inflexible edict would paralyze the investigative process and eviscerate effective law enforcement." 294 F.2d at 532.
See also United States v. Ladson, 294 F.2d 535 (2d Cir.1961), cert. denied, 369 U.S. 824 (1962) (delay in arraignment of one hour for interrogation not unnecessary); Metoyer v. United States, 250 F.2d 30 (D.C. Cir.1957) (two-hour delay permissible). Some courts, however, have taken the opposing view that a delay of even a few minutes for the purpose of interrogation renders a statement inadmissible. Thus, in Alston v. United States, 348 F.2d 72, 73 (D.C. Cir.1965), the court held that a delay of five minutes for the purpose of *345 interrogation was violative of the prompt presentment rule, and that the statement obtained was inadmissible, since "the arresting officers failed to take appellant before a committing magistrate `as quickly as possible.'" Accord, Greenwell v. United States, 336 F.2d 962 (D.C. Cir.1964), cert. denied, 380 U.S. 923 (1965). One federal district judge surveyed cases within the District of Columbia circuit and found them to be in irreconcilable conflict. See United States v. Fuller, 243 F. Supp. 178 (D.D.C. 1965), aff'd 407 F.2d 1199 (D.C. Cir.1967), aff'd on rehearing (1968), cert. denied, 393 U.S. 1120 (1969). See also 3 J. Wigmore, Evidence § 862(a), at 612-15 (Chadbourn rev. 1970).
Congressional dissatisfaction with the McNabb-Mallory exclusionary rule eventually culminated in the passage of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 3501; that statute provides in subsection (c) that a confession is not inadmissible solely because of delay in bringing the person before a commissioner if the trial judge finds that the confession was voluntarily made, if the weight to be given to it is left to the jury, and if the confession was made within six hours following arrest. While it is possible to construe this legislation as restricting the McNabb-Mallory rule to delays in excess of six hours, see United States v. Erving, 388 F. Supp. 1011 (W.D. Wis. 1975); Annot., 12 A.L.R. Fed. 377 (1972); 3 J. Wigmore, supra, § 862(a), at 619-623, the federal courts have generally construed the statute in a more liberal manner, rejecting McNabb-Mallory completely, and holding that a delay in arraignment greater than six hours "merely constitutes another factor to be considered by the trial judge in determining voluntariness." United States v. Hathorn, 451 F.2d 1337, 1341 (5th Cir.1971). Accord, United States v. Gaines, 555 F.2d 618 (7th Cir.1977); United States v. Shoemaker, 542 F.2d 561 (10th Cir.), cert. denied, 429 U.S. 1004 (1976); United States v. Edwards, 539 F.2d 689 (9th Cir.), cert. denied, 429 U.S. 984 (1976); United States v. Bear Killer, 534 F.2d 1253 (8th Cir.), cert. denied, 429 U.S. 846 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir.1974), cert. denied, 420 U.S. 909 (1975); United States v. Halbert, 436 F. *346 2d 1226 (9th Cir.1970). Thus, the McNabb-Mallory doctrine has been effectively vitiated in the federal courts and replaced with a voluntariness test in which delay in arraignment is considered as only one factor in determining admissibility. See Note, Admissibility of Confessions Obtained Between Arrest and Arraignment: Federal and Pennsylvania Approaches, 79 Dickinson L.R. 309 (1975).
Similarly, as the majority here recognizes, the overwhelming majority of states have refused to adopt a per se exclusionary rule for violations of prompt arraignment statutes. See, e.g., Rogers v. Superior Court of Alameda County, 46 Cal.2d 3, 291 P.2d 929 (1955), where a defendant confessed four days after his arrest, and was not arraigned until the eighth day, in violation of a California statute which required presentment without unnecessary delay and in any event within two days after arrest. The court rejected the contention that the confession was inadmissible due to violation of the statute, stating that the test of admissibility is whether, considering all the circumstances, the statement was freely and voluntarily made. See generally cases cited in Annot., 19 A.L.R.2d 1331 (1951); 3 J. Wigmore, supra, § 862(a). Even in those few states which have adopted the McNabb-Mallory doctrine, the wisdom of the rule is sometimes questioned because it considers only the amount of time between arrest and confession without giving any consideration to whether the confession was voluntary, leading to the exclusion of statements freely given and constitutionally valid. See, e.g., Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973) (Eagen, J. concurring).
In Taylor v. State, 238 Md. 424, 209 A.2d 595 (1965), our predecessors rejected the contention that statements were rendered inadmissible because the defendant had not been promptly taken before a judge of the municipal court, as then required by statute. We there pointed out that no time limit for arraignment was fixed in the statute, unlike the rule under consideration here, but that in any event "no mention is made to the effect that a failure to take such a person before one of the judges by a specified time shall render a voluntary confession inadmissible." 238 Md. at 432. We stated *347 that "the critical test of ... admissibility depended upon whether the totality of the circumstances surrounding [the] making [of the confession] disclosed that the statements were freely and voluntarily made." Id. at 432.
The test of voluntariness enunciated in Taylor would allow the trial court to consider, in ruling on the admissibility of a confession, all the circumstances surrounding the confession, including the fact that the defendant has been illegally detained in violation of M.D.R. 709 a. Thus, the voluntariness test places emphasis not so much on the time of delay as on what occurred during the delay. Unnecessary delay is, of course, a factor in determining voluntariness, but it is not, and should not, be dispositive. Indeed, Maryland decisions have long recognized that the test of a confession's admissibility is whether it was voluntarily given. See, e.g., Gill v. State, 265 Md. 350, 289 A.2d 575 (1972); Price v. State, 261 Md. 573, 277 A.2d 256 (1971); Streams v. State, 238 Md. 278, 208 A.2d 614 (1965); Bean v. State, 234 Md. 432, 199 A.2d 773 (1964).
It is particularly unfortunate that the Court has chosen the instant case to overrule our prior precedents and adopt the now thoroughly eroded rationale of McNabb-Mallory. In view of the circumstances disclosed by the record, it is doubtful that the delay in bringing Johnson before a judicial officer actually violated the provisions of M.D.R. 709 a. Johnson surrendered to the police at 3:15 P.M. on January 30, 1975. Had the District Court then been in session, it would have been incumbent upon the police in complying with M.D.R. 709 a to bring Johnson before a judicial officer for his initial appearance not later than the end of that court session. The record does not disclose, however, whether the court was in session at the time of Johnson's arrest on January 30, 1975, or at any time thereafter on that day. Nor does it disclose that the delay in presenting Johnson before a District Court Commissioner was "unnecessary" within the contemplation of the rule. Johnson became ill with stomach pains almost immediately after his arrest and at his request, after refusing a police offer of hospitalization, he was permitted to remain in the station house lockup overnight. The testimony indicated *348 that had he been taken before a Commissioner while he was ill, the regulations precluded his referral to a county detention center. It cannot be said, therefore, that this period of delay was unnecessary; certainly it was not contrived by the police as a ruse to deliberately postpone Johnson's initial appearance before a judicial officer in order to subject him to interrogation and coerce a confession.
The record is similarly deficient in disclosing the time at which the first session of the District Court began or ended on the following day. It is perfectly clear, however, that at 9:45 A.M. on January 31, 1975, Johnson was once again afforded Miranda warnings and indicated a willingness to undergo police questioning. As of that time, neither of the outer prescribed time limits of M.D.R. 709 a had elapsed and, in view of the circumstances, the delay in bringing Johnson before a Commissioner was not "unnecessary." The record fairly discloses that beginning shortly after 9:45 A.M. on January 31, Johnson's agreement to submit to police interrogation culminated in a voluntary oral statement by which he incriminated himself in the Acme Market robbery.
While it is true that the confession was not ultimately reduced to writing and signed until 3:45 P.M. on January 31 30 minutes after the 24-hour period had expired the substance of the confession was orally given well prior to that time. Detective Wallace, one of the two interrogating officers who had questioned Johnson, testified that during the five-hour interrogation conducted on January 31, Johnson gave a 10-page statement concerning the Acme robbery and, in addition, drew a diagram of the crime scene. In his testimony, Wallace explained how a statement is obtained: "Well we usually ask them after we get finished talking to them to try to put it in their own words and we try to do this line by line so that nothing is put into this statement in our own words but of the person who is being interrogated to try to put it into their own words. The time it was started was 9:45 A.M. and we have a ten page statement and it ended at 3:45 P.M."
The other interrogating officer, Detective Brown, said that *349 Johnson proceeded to make a statement after waiving his Miranda rights. He said that Johnson just "started talking" and that he "started writing." It is implicit in his testimony that Johnson began incriminating himself shortly after 9:45 A.M. and continued until the confession was ultimately completed and signed at 3:45 P.M. Brown further testified that during the course of his statement, Johnson admitted that he robbed the Acme with two other people. Johnson agreed to view a photographic lineup for the purpose of identifying his accomplices. The detectives filled out a photographic lineup form noting that Johnson viewed six photographs from which he positively identified the two other individuals. This form, introduced in evidence at the trial, was signed by Johnson; below his signature in a space marked "time" is written "2/56 PM." It is thus clear that at the very latest Johnson had incriminated himself in the Acme robbery by 2:56 P.M. on January 31, 19 minutes before the 24-hour period had run.
In view of these facts, the exception to the McNabb-Mallory rule created by United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944), appears to be applicable. That case involved an oral confession voluntarily given by an accused shortly after his arrest. The Court there found that even though the accused was not brought before a committing magistrate for arraignment until some eight days after he had confessed, and that such failure constituted illegal detention, that the delay in presentment nevertheless did not require exclusion of the confession. The Court said that the confession was not induced by the illegal detention, nor was it obtained as a result of a violation of the accused's legal rights; consequently, it said, the admission of the confession did not constitute use by the government of the fruits of wrongdoing by its own officers. As in Mitchell, there was no demonstrated violation of M.D.R. 709 a prior to the commencement of Johnson's confession on the morning of January 31. That he did not sign the confession until much later in the day, some 30 minutes after the 24-hour period had expired, and because he was not actually brought before *350 a Commissioner until 4 P.M. that day, does not mandate the exclusion of the confession under the McNabb-Mallory rule, since its admission did not constitute use by the prosecution of the fruits of any wrongdoing on the part of the police. See Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir.1974), cert. denied, 420 U.S. 909 (1975); Com. v. Jones, Pa., 374 A.2d 970 (1977).
It seems foolhardy in the extreme to so interpret the requirements of M.D.R. 709 a, as the majority has done, to mandate the automatic exclusion from evidence of a voluntary confession given under the circumstances present in this case. The benefits of the doctrine that the Court today adopts will accrue only to those who have made incriminating statements following arrest but prior to presentment before a judicial officer. No sanctions are provided to secure rights afforded to an accused person under M.D.R. 709 a who does not confess prior to prompt presentment, unless, of course, the ultimate exclusionary rule is to be applied in such instances, namely, outright and final release from all prosecution of an individual subjected to "unnecessary delay" in arraignment under M.D.R. 709 a by no means an illogical extension of the Court's holding if the purpose of the exclusionary rule is to deter future police misconduct.
As a result of the majority's decision, the prosecution will be required affirmatively to establish, where challenged, that the confession was not made during a period of "unnecessary delay" in violation of M.D.R. 709 a, now M.D.R. 723 a. This burden upon the prosecution will be in addition to demonstrating, where the confession's admissibility is challenged, traditional voluntariness and compliance with all Miranda requirements. That the Court's holding will be afforded a retroactive effect, at least to 1971 when M.D.R. 709 a was first enacted, is more than likely, thus spawning a plethora of post conviction applications to overturn convictions long since final.
I would, therefore, affirm the judgments of conviction in this case. I fully concur in the dissenting views of my Brother *351 Orth and agree that while the provisions of M.D.R. 709 a prescribe a mandatory rule for police conduct, a violation of the rule does not, absent express provision for the sanction in the rule itself, require exclusion of an otherwise voluntary confession.
Judges Smith and Orth authorize me to state that they join in the views expressed herein.
NOTES
[1] Effective July 1, 1977, Chapter 700 of the Maryland District Rules underwent extensive revision. Only slight changes, however, were made in the language of former M.D.R. 709 a which has now been redesignated M.D.R. 723 a. For the sake of clarity, all references to the Maryland District Rules in this opinion are to the version currently in effect, unless otherwise indicated.
[2] An Anne Arundel County grand jury handed down three separate indictments against appellant who then obtained removal of the cases to Carroll County. All three cases were subsequently consolidated at the State's request and tried together.
[3] Former M.D.R. 706 d required an arresting officer to give an accused a copy of the arrest warrant "promptly after his arrest." (See present M.D.R. 720 g requiring service of warrant and charging document on defendant "as soon as possible" after arrest.) Since, for reasons to be stated elsewhere, we have concluded that appellant's statements were inadmissible by reason of M.D.R. 723 a, we have no occasion to decide whether such statements were also excludible under former M.D.R. 706 d or Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
[4] See, e.g., Maryland Code (1957, 1968 Repl. Vol., 1971 Cum. Supp.) Art. 52, § 97 (h) (Montgomery County) (repealed 1972), discussed in Jackson v. State, 8 Md. App. 260, 267-69, 259 A.2d 587 (1969); Code (1957, 1966 Repl. Vol.) Art. 26, § 115 (Baltimore City) (repealed 1972), discussed in Taylor v. State, 238 Md. 424, 431-32, 209 A.2d 595 (1965); Code of Pub. Loc. L. (1938) Art. 4, §§ 742 and 916 (Baltimore City) (repealed 1961), discussed in Grear v. State, 194 Md. 335, 348-49, 71 A.2d 24 (1950) and Cox v. State, 192 Md. 525, 534-36, 64 A.2d 732 (1949).
[5] See, e.g., People v. Haydel, 12 Cal.3d 190, 115 Cal. Rptr. 394, 524 P.2d 866, 870 (1974); State v. Wyman, 97 Idaho 486, 547 P.2d 531, 536 (1976); State v. Hansen, 225 N.W.2d 343, 350 (Iowa 1975); State v. Jones, 53 N.J. 568, 252 A.2d 37, 39-41, cert. denied, 395 U.S. 970 (1969); People v. Carbonaro, 21 N.Y.2d 271, 287 N.Y.S.2d 385, 234 N.E.2d 433, 436 (1968); State v. Shipley, 232 Or. 354, 375 P.2d 237, 240 (1962), cert. denied, 374 U.S. 811 (1963); State v. Hoffman, 64 Wash.2d 445, 392 P.2d 237, 240 (1964); and see cases collected in Annot., 19 A.L.R.2d 1331 (1951).
Even the federal courts, spurred on by the enactment of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 3501 (1970), which purported to overrule McNabb-Mallory with respect to delays lasting less than six hours, have all but jettisoned the per se exclusionary rule in favor of a voluntariness standard in all cases including those where the delay in presentment exceeds six hours. See, e.g., United States v. Gaines, 555 F.2d 618, 623 (7th Cir.1977).
[1] As the majority opinion points out in its note 1, effective 1 July 1977, chapter 700 of the Maryland District Rules underwent extensive revision, but only slight changes were made in former M.D.R. 709 a. It was redesignated as M.D.R. 723 a, and now reads:
"A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant's arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed."
The majority opinion noted that for the sake of clarity, all references to the Maryland District Rules are to the version currently in effect, unless otherwise indicated. The same procedure is followed in this dissenting opinion.
[2] Acts 1961, ch. 616, which enacted the law codified as Art. 26, § 115, of which the above provision was a part, at the same time repealed § 428 of the Charter and Public Local Laws of Baltimore City (1949) as amended by ch. 458, Acts 1951. The former law was in substance the same as § 115 except that the arrestee was to be taken before a justice of the peace. Gerstein v. State, 10 Md. App. 322, 327, 270 A.2d 331 (1970), cert. denied, 260 Md. 720, cert. denied, 402 U.S. 1009 (1971).
[3] A committing magistrate under the Section was an employee of the People's Court for Montgomery County appointed by the county executive with the advice and consent of the chief judge of the People's Court for Montgomery County and designated as a committing magistrate.
[4] Baltimore City Code of Pub. Loc. L. (1938) Art. 4, § 742 and § 916 appeared in Baltimore City Code Pub. Loc. L. (1949) as Art. 4, § 428 and § 565 respectively. Section 428 was repealed by Acts 1961, ch. 616 and § 565 was repealed by Acts 1966, ch. 203.
[5] For the present status of the law, see Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975); Ryon v. State, 29 Md. App. 62, 349 A.2d 393 (1975), aff'd, 278 Md. 302, 363 A.2d 243 (1976).
[6] The majority suggest on the authority of Liebmann, that "[i]n response to comments from state and local law enforcement officials ... the proposed rule was modified to incorporate a presumption of illegality, which applies whenever an arrestee is detained by police beyond 24 hours or the first session of court following arrest without having been taken to a judicial officer." I do not interpret Liebmann as saying that. It seems to me that there is a significant distinction between a modification "to supply an interpretive gloss" and a modification "to incorporate a presumption of illegality." It appeared to Liebmann, however, that the modification of the rule, by implicitly defining permissible delay, in any event, repudiated the cases under Federal Rule 5 (a) excluding statements obtained during periods of delay resulting from unavailability of a magistrate. Liebmann, § 941, at 142-143. Liebmann notes, n. 3, at 143: "Thus it would be inappropriate for the Maryland courts to follow cases such as United States v. Middleton, 344 F.2d 78 (C.A.2d, 1965) and Coleman v. United States, 114 U.S. App. D.C. 185, 313 F.2d 576 (1962)."
[7] The majority point out that the exclusionary rule has received sharp criticism from some quarters, including the Chief Justice of the United States. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416, 91 S.Ct. 1999 (1971) (Burger, C.J., dissenting).
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15 Cal.App.4th 56 (1993)
18 Cal. Rptr.2d 726
CHAMPION/L.B.S. ASSOCIATES DEVELOPMENT COMPANY, Plaintiff and Respondent,
v.
E-Z SERVE PETROLEUM MARKETING, INC., Defendant and Appellant.
Docket No. G012930.
Court of Appeals of California, Fourth District, Division Three.
April 22, 1993.
*57 COUNSEL
Cain & Cain and Gene Cain for Defendant and Appellant.
Timothy D. Reuben and Ronny Sendukas for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
SILLS, P.J.
In Greene v. Amante (1992) 3 Cal. App.4th 684 [4 Cal. Rptr.2d 571], this court held that orders imposing discovery sanctions over $750 are appealable. In the present appeal, we must decide whether sanctions of less than that amount arising out of one discovery motion may be "aggregated" with sanctions arising out of another motion and decided at the same hearing. For appealability purposes, we believe we must look to the offending lawyer's course of conduct, not the number of motions involved or the fortuity that they were consolidated for hearing. Here, the course of conduct giving rise to the sanctions award of less than $750 is separate and distinct from the conduct at issue in the other motion. We therefore dismiss that portion of the appeal involving the award of less than $750 as nonappealable *58 under Code of Civil Procedure section 904.1, subdivision (k).[1] For reasons stated in the unpublished portion of this opinion, we affirm the award of greater than $750 arising from the other motion.
FACTS
Plaintiff Champion/L.B.S. Associates Development Company (Champion) sued defendant E-Z Serve Petroleum Marketing, Inc. (E-Z Serve) and two other oil companies in 1990 for contamination of Champion's property; the contamination allegedly emanated from leaks in underground gasoline storage tanks. On July 11, 1990, Champion served a set of interrogatories and a request for production of documents on E-Z Serve.[2] Since the trial court awarded sanctions for failure to respond to this discovery, we must assume that E-Z Serve in fact did not respond.[3] A year and a half passed without incident; according to Champion, it did not immediately move to compel responses because the parties had expressed an interest in settlement. Finally, on February 27, 1992, Champion filed a motion to compel responses, together with a request for sanctions under section 2023 and related provisions.[4] The motion was originally set for March 24, but apparently was continued until April 21.
Meanwhile, shortly before it filed its motion to compel (i.e., on Feb. 24, 1992), Champion propounded a set of requests for admissions to E-Z Serve. Responses were not served by the due date, March 30. On April 2, Champion filed a motion seeking an order that the facts which were the subject of the requests for admissions be deemed admitted, together with a request for sanctions. E-Z Serve filed a belated response to the requests for admissions on April 8. E-Z Serve's counsel (Cain) mentioned the belated responses in his opposition to Champion's motion, and requested sanctions of his own for having to respond. In his declaration supporting his opposition, Cain also *59 requested that he be allowed to appear on the motion by telephone (his office is in Walnut Creek).
Both motions were heard on April 21. Champion's attorney was present in court; according to the minute orders, Gene Cain appeared for E-Z Serve "by telephone." Both parties agree that the trial court did not entertain oral argument. The court granted the motion to compel discovery, and awarded sanctions of $1,500 against E-Z Serve and Cain on that motion. In a separate minute order, the court also granted the motion to deem facts admitted, and awarded sanctions of $315 solely against Cain. E-Z Serve appeals from these minute orders.[5]
DISCUSSION
I
Under Greene v. Amante, supra, 3 Cal. App.4th 684, the order awarding sanctions of $1,500 in connection with the motion to compel discovery is appealable.[6] (1) E-Z Serve also seeks appellate review of the order awarding $315 in sanctions arising out of the motion to deem facts admitted. Under section 904.1, subdivision (k), an appeal lies "[f]rom a superior court judgment directing payment of monetary sanctions by a party or an attorney for a party only if the amount exceeds seven hundred fifty dollars ($750). Lesser sanction judgments against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, in the alternative, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ." The $315 sanction award is below the $750 "bright line" created by subdivision (k). It is not appealable.
Having said this, we recognize that there may be situations where "aggregating" separate sanction awards in order to reach the $750 minimum may be appropriate. Let us assume that a defendant simultaneously propounds a set of interrogatories, a set of requests for admission, and a request for production of documents to a plaintiff, and defendant believes plaintiff's responses are inadequate. Defendant files a motion (or perhaps two or three motions) to compel further discovery. Plaintiff then opposes the motion (or *60 motions), asserting the responses are complete. The trial court sides with defendant and issues three separate sanction awards of $600 each. In such a case, it could well be that it is the same conduct which is being sanctioned three times. If so, we think "aggregation" would be proper. Absent such circumstances (which are certainly not present in the instant appeal), the $750 bright line test applies. Therefore, that portion of this appeal dealing with the $315 sanctions award is dismissed.
II, III[*]
.... .... .... .... .... .... .... .
DISPOSITION
The purported appeal from the order imposing sanctions of $315 is dismissed. For reasons stated in the unpublished portion of this opinion, the sanctions order for $1,500 is affirmed.
Wallin, J., concurred.
CROSBY, J., Concurring and Dissenting.
Dismissal of that portion of the appeal purporting to challenge the $315 sanctions award is, of course, correct. (Greene v. Amante (1992) 3 Cal. App.4th 684, 690-692 [4 Cal. Rptr.2d 571] (dis. opn. of Crosby, J.).) I vehemently disagree, however, with the majority's dictum concerning aggregation of a series of minuscule discovery sanctions awards to reach what they characterize as a "$750 `bright line.'" (Maj. opn., ante, at p. 59.)
For the reasons expressed in my dissenting opinion in Greene, I also disagree with the decision to resolve the $1,500 discovery sanctions issue on the merits. (Greene v. Amante, supra, 3 Cal. App.4th 684, 690-692 (dis. opn. of Crosby, J.).) There is no presently appealable judgment; and it is just plain silly to shelve serious business in order to entertain a chorus of whining lawyers complaining of such awards, most of which would be small potatoes in small claims court.
NOTES
[*] Pursuant to rules 976(b) and 976.1 of the California Rules of Court, this opinion is certified for publication with the exception of parts II and III.
[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] The proofs of service for the set of interrogatories and the request for production of documents are not contained in either the appellant's or the respondent's appendix in lieu of clerk's transcript. However, we have located these documents in the appendix Champion filed in opposition to a petition for writ of mandate filed by E-Z Serve in July 1992 on issues arising out of one of the motions involved in this appeal (E-Z Serve Petroleum Marketing, Inc. v. Superior Court (Aug. 13, 1992, G012834), [nonpub. opn.] petn. den.). Champion has requested we take judicial notice of this appendix, and we grant that request, primarily because the appendix contains many documents which should have been included in the record on appeal. Champion complains that E-Z Serve's record in this appeal is inadequate; while that may be true, Champion's own request for judicial notice solves the problem.
[3] According to E-Z Serve's attorney, Gene Cain, he mailed responses on September 1, 1990; however, he admitted he did not have a signed proof of service in his file.
[4] Champion also sought to compel attendance at a deposition it had noticed, but that portion of its motion was denied.
[5] On July 13, E-Z Serve petitioned this court for a writ of mandate seeking relief from the trial court's order deeming facts admitted. (See fn. 2, ante.) After requesting an informal response, we denied the petition.
[6] Between appellant and respondent, the parties have cited every recently published decision concerning the appealability of discovery sanction orders except this court's decision in Greene.
[*] See footnote, ante, page 56.
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586 S.E.2d 748 (2003)
262 Ga. App. 860
In the Interest of J.D.T., a child.
No. A03A0894.
Court of Appeals of Georgia.
August 25, 2003.
Robert Perrine, Jr., Leesburg, for appellant.
Kenneth B. Hodges III, Dist. Atty., Gregory W. Edwards, Asst. Dist. Atty., for appellee.
ELDRIDGE, Judge.
Following a full hearing in the juvenile court, fourteen-year-old J.D.T. was adjudicated delinquent on three counts of theft by *749 taking a motor vehicle (OCGA § 16-8-2) and two counts of striking a stationary object (OCGA § 40-6-272). A motion for new trial was denied, and he appeals pursuant to the trial court's subsequent grant of an out-of-time appeal. Finding no error, we affirm.
Viewed in the light most favorable to the juvenile court's adjudication,[1] the evidence at trial showed that on Sunday, July 21, 2002, a Mack semi-tractor and trailer was taken from the property of Southern Concrete, and a concrete mixer and a block truck were taken from the adjacent property of Florida Rock Industries ("Florida Rock"). Michael Brinson and Robert Lassiter testified that they observed a semi-tractor and trailer and a block truck parked in the middle of the public road, abutting the property of Southern Concrete and Florida Rock. The block truck was parked to the rear of the semi-tractor and trailer. J.D.T. exited the semi-tractor and trailer and got into the block truck where his twelve-year-old nephew, K.J., was waiting, and the two boys drove the block truck around the semi-tractor and trailer, leaving the semi-tractor and trailer in the middle of the road. Brinson and Lassiter watched as the boys drove the block truck down the road and onto a sandy area, where the block truck became stuck up to its axles in the soft ground. The boys then abandoned the block truck and walked down the train tracks.
Later, Brinson and Lassiter observed the same two boys driving a concrete mixer truck out of Florida Rock and down the public road. The boys struck the semi-tractor and trailer several times with the concrete mixer truck as they attempted to turn the concrete mixer truck around. The boys drove the concrete mixer truck to where the block truck was stuck. Attaching a chain to both vehicles, they attempted to dislodge the block truck. During this procedure, they caused the concrete mixer to collide with the block truck, damaging the front of the block truck. Noting the young age of the boys, Brinson and Lassiter called 911. When police arrived, they observed J.D.T. jumping out of the concrete mixer. His nephew was standing outside the truck by the passenger door. Held:
1. J.D.T. alleges that there was a fatal variance between what was alleged in the first count of the delinquency petition and what was proven at trial. In this case, the first count of the delinquency petition alleged that J.D.T. unlawfully took "a 1989 International 4700 with trailer #270, VIN 1HTSCZWMSLH211055, belonging to Southern Concrete with the intent of depriving said owner of said vehicle." J.D.T. alleges that the testimony of Thomas Wenzell, Southern Concrete's trucking supervisor, that the truck stolen from Southern Concrete was a Mack, as opposed to an International, created a fatal variance. We disagree.
"The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." (Citations and punctuation omitted.) Dobbs v. State, 235 Ga. 800, 801-802(3), 221 S.E.2d 576 (1976).
In the Interest of B.C.G., 235 Ga.App. 1, 2(1), 508 S.E.2d 239 (1998); De Palma v. State, 225 Ga. 465, 469-470, 169 S.E.2d 801 (1969). "Since De Palma the trend has been away from overly-technical applications of the fatal variance rule, at least with respect to the description or amount of the stolen property." (Citation and punctuation omitted; emphasis supplied.) Gaskin v. State, 171 Ga. App. 266, 267(1), 319 S.E.2d 482 (1984).
At the delinquency hearing, the evidence showed that, of the three vehicles stolen on July 21, 2002, only one vehicle was a semi-tractor and trailer and that the semi-tractor and trailer was the only vehicle taken from Southern Concrete. The other two vehicles, a block truck and a concrete mixer, were unlawfully taken from Florida Rock. Wenzell, Southern Concrete's trucking supervisor, testified that a semi-tractor and trailer *750 belonging to Southern Concrete was stolen on Sunday, July 21, 2002. Wenzell further testified that it was Southern Concrete's truck number 270; that the tractor was orange in color; that it was left parked on Southern Concrete's property, just east of the shop; and that no one had permission to drive the truck on that Sunday. Additionally, Wenzell testified that the step, the fuel tank, the fenders, and quarter fenders were damaged on the previously undamaged tractor.
When police officers arrived on the scene, the semi-tractor and trailer was still parked in the middle of the public road. Officer Alicia Crain of the Albany Police Department testified that the tractor was orange in color and had Southern Concrete's name on the door and that the semi-tractor and trailer had damage consistent with the damage described by Wenzell and consistent with Brinson's and Lassiter's description of the boys striking the semi-tractor and trailer with the concrete mixer.
Where there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is no fatal variance between the allegata and the probata.
(Citation and punctuation omitted.) Dunbar v. State, 228 Ga.App. 104, 106-107(1)(a), 491 S.E.2d 166 (1997).
There being sufficient evidence in this case to identify the semi-tractor and trailer described in Count 1 of the petition and in the proof at trial as being one and the same, the fact that Wenzell identified the tractor stolen from Southern Concrete as a Mack did not mislead or misinform J.D.T., or leave him subject to subsequent prosecution for the same offense and, thus, was not a fatal variance. See Hechevarria v. State, 202 Ga.App. 502, 503-504(3), 414 S.E.2d 723 (1992) (no fatal variance where the indictment alleged an Emerson television was stolen and the proof showed the stolen television was a Sharp and that the serial number had been removed); Graves v. State, 180 Ga.App. 446, 447-448(2), 349 S.E.2d 519 (1986) (no fatal variance where indictment alleged a 1976 Ford LN 700 truck was stolen and proof showed the truck was a 1977 model); Clark v. State, 178 Ga.App. 47-48(1), 341 S.E.2d 909 (1986) (variance between allegation and proof of vehicle identification number not a fatal variance); Bain v. State, 144 Ga.App. 470(2), 241 S.E.2d 586 (1978) (variance between allegation and proof of the model of the vehicle not fatal).
2. Further, the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), to support the juvenile judge's adjudication of delinquency based on all the counts alleged in the petition. Contrary to J.D.T.'s assertion, there was evidence that all three trucks were taken off the owners' properties and were driven on the abutting public road.
Further, J.D.T.'s argument that the only testimony connecting him to the alleged crimes was that of Brinson and Lassiter, which was "draped in suspicion" as both he and K.J. testified at trial that they were innocent and that Brinson and Lassiter actually committed the offenses he was charged with. However, this goes to witness credibility.
In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court's adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.
(Citations and punctuation omitted.) In the Interest of J.M., 237 Ga.App. 298(1), (573 S.E.2d 742) (1999); Jackson v. Virginia, supra.
Determining the credibility of witnesses and resolving conflicts [go] to the weight of the evidence and [are] for the jury's consideration. This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.
(Citations and punctuation omitted.) Simmons v. State, 236 Ga.App. 83, 85-86(1), 510 S.E.2d 925 (1999).
*751 "[The juvenile judge, as factfinder,] is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. [Cit.]" Drake v. State, 238 Ga.App. 584, 586(1), 519 S.E.2d 692 (1999). Here, the juvenile judge evidently disbelieved J.D.T.'s protestations of innocence, which is the factfinder's prerogative.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In the Interest of J. M., 237 Ga.App. 298, 513 S.E.2d 742 (1999).
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALBERTO RAMOS ALGABA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1545
[August 10, 2017]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Ernest A. Kollra, Jr.,
Judge; L.T. Case No. 12-13378CF10A.
Alberto Ramos Algaba, Milton, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
DAMOORGIAN, CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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459 F.2d 76
UNITED STATES of America ex rel. Milton ELLINGTON,Petitioner-Appellant,v.Hon. J. P. CONBOY, Superintendent, Great Meadow CorrectionalFacility, Comstock, New York, Respondent-Appellee.
No. 588, Docket 71-2178.
United States Court of Appeals,Second Circuit.
Argued March 20, 1972.Decided April 24, 1972.
Jonathan R. Harkavy, New York City, for petitioner-appellant.
Benton J. Levy, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of N.Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Iris A. Steel, Asst. Atty. Gen., of counsel), for respondent-appellee.
Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
1
The petitioner-appellant, Milton Ellington, was convicted of second degree robbery after a trial by jury in the Supreme Court of New York, Bronx County. On October 22, 1969 he was sentenced to an indeterminate term not to exceed seven years. While serving this term as an inmate of the Great Meadow Correctional Facility, Comstock, New York, he petitioned pro se for a writ of habeas corpus in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. Sec. 2254. By order dated October 6, 1971, Judge Murray Gurfein dismissed the petition. 333 F. Supp. 1318. We vacate the order below and remand for further proceedings consistent with this opinion.
2
Prior to his trial in New York the petitioner, Ellington, moved to suppress certain inculpatory statements made by him at the time of his arrest, based upon alleged violations of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further moved to suppress an anticipated in-court identification by a principal witness as a violation of his rights under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1296, 18 L.Ed.2d 1149 (1967). After a suppression hearing in the state court the trial judge denied both motions, and the evidence objected to was admitted on trial. Ellington's conviction was appealed by assigned counsel and was unanimously affirmed without opinion by the Appellate Division, First Department on February 18, 1971. People v. Ellington, 36 A.D.2d 689, 318 N.Y.S.2d 668 (1st Dep't 1971).
3
Immediately after the affirmance, appellant, proceeding pro se, sought leave of the Appellate Division to submit a supplemental brief or alternatively to reargue the appeal and to be assigned new counsel. On March 11, 1971 Ellington again moved in the Appellate Division as an indigent for a free trial manuscript in order to prepare his appeal and for collateral proceedings. Although his counsel had already been provided a free trial manuscript,1 Ellington claimed that his assigned counsel had not shown him a copy thus preventing a cooperative effort in the preparation of the appeal. He further asserted that his representation on appeal was inadequate and that counsel should be dismissed. Treating his pro se petitions as a motion to reargue his appeal, the Appellate Division denied the motion on March 18, 1971. The Clerk of the Appellate Division advised Ellington by letter dated March 18, 1971 that denial of the motion by that court to reargue constituted an automatic termination of assigned counsel and, in view of the denial, it had no power to furnish him with an additional trial manuscript. Despite this notification, and apparently without appellant's knowledge, the same assigned counsel had made application to the Court of Appeals for leave to appeal, which was denied by Chief Judge Fuld on March 25, 1971.
4
Ellington's next step was to file the instant pro se application for a writ of habeas corpus in the United States District Court for the Southern District of New York. A reading of the petition, supporting affidavits and memorandum of law submitted by this state inmate indicates two basic contentions-first, that the state is constitutionally obligated under the equal protection clause of the fourteenth amendment to furnish the defendant with his own trial transcript for appeal purposes when he claims that his appellate counsel is inadequate or uncooperative. (See Roberts v. La Vallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). Second, that the state is constitutionally obligated under equal protection guarantees to provide him with a free transcript of the trial to assist him in proposed collateral attacks on his conviction, which here would involve the Miranda and Wade issues.
5
The District Court held that under the requirements of 28 U.S.C. Sec. 2254(b) and (c) the applicant had failed to exhaust his state remedies on these two claims. With respect to the effectiveness of appellate representation the court held that coram nobis is available to him in the state court. People v. Lampkins, 21 N.Y.2d 138, 286 N.Y.S.2d 844, 233 N.E.2d 849 (1967); People v. Brown, 7 N.Y.2d 359, 197 N.Y.S.2d 705, 165 N.E.2d 557 (1960), cert. denied, 365 U.S. 821, 81 S.Ct. 703, 5 L.Ed.2d 698 (1961); People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551 (1960). On the issue of the free transcript the Supreme Court in Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970) faced the same question but declined to answer it since the prisoner had never attempted to secure the transcript for the proposed collateral attack and hence had not exhausted his state remedies. In the instant case, the Appellate Division's refusal to give petitioner a copy for either appeal or habeas corpus purposes was based solely on its asserted lack of power to grant him relief because his appeal to that court had already been decided. Petitioner did not attempt to attack this refusal in any state collateral proceeding. See United States ex rel. Garcia v. Martin, 271 F.2d 298 (2d Cir. 1959).
6
Had the District Court simply dismissed the petition and relegated the petitioner to his state remedies this appeal would present no unusual problems. However, the court below proceeded to examine the merits of both the Miranda and Wade claims. Finding that the Miranda point had been raised in the suppression hearing and in the Appellate Division and Court of Appeals, the court found exhaustion of state remedies on that issue and proceeded to find no violation of petitioner's constitutional right against self-incrimination under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Wade identification claim was initially and unsuccessfully raised at an identification hearing in the Supreme Court of New York. On appeal to the Appellate Division, Ellington's assigned counsel did urge that the identification evidence was too weak to warrant a conviction but did not urge the Wade constitutional point. Although finding that the issue had therefore not been exhausted in the state court, the court below, "to eliminate further time consuming action by State and Federal Judges", nevertheless proceeded to find that the in-court identification of Ellington was constitutionally untainted. The court further found that although the Wade point was not squarely raised on appeal to the Appellate Division, any chance of success in a state collateral proceeding would be "meager indeed".
7
While the motivation and industry of the court below was commendable, we are now faced with the argument by counsel assigned for this appeal that Ellington's pro se application did not seek any adjudication on the merits of the Miranda and Wade claims, and that the decision made by the court was gratuitous. Moreover, it is urged that Ellington's position has always been that without the additional free trial manuscript and the cooperation of adequate counsel, he could not properly present his position on the Miranda and Wade issues. Although the record indicates that the court below did have access to the transcript of the suppression hearings, the trial manuscript is not part of the record and was not available to Ellington when he prepared his application. It is urged that Ellington is now in a unique jurisdictional and constitutional quandary. He has been told in effect that he has not exhausted his New York State collateral remedies, but in any event he is faced with an adverse federal decision on the ultimate constitutional issues he wishes to litigate. The extrication of Ellington from his present dilemma has been considerably facilitated by the fact that his newly assigned counsel stated on the oral argument that counsel now has in his possession the trancript of Ellington's trial. We see no point then in relegating Ellington to collateral proceedings in the state court to contest issues which are now, as a practical matter, moot. "the exhaustion requirement of 28 U.S.C. Sec. 2254 is not jurisdictional and courts may deviate from it in those rare instances where justice so requires." United States ex rel. Graham v. Mancusi, 457 F.2d 463 (2d Cir., 1972). Under the unusual circumstances here presented we believe that it would now be fruitless to pursue the question of Ellington's asserted right to adequate appellate counsel and a second free personal transcript in the New York courts. He is now represented by counsel who has displayed energy and ability in presenting his argument on appeal and who is now armed with the trial transcript which he has been seeking. We hold therefore that the decision below should be vacated and that Ellington be given the opportunity to amend his application for a writ of habeas corpus in the court below, after he examines the trial transcript with the assistance and cooperation of his present counsel. The District Court should then reconsider its decision on the merits of the Miranda and Wade issues in light of any arguments which petitioner may make in the amended petition and supplementary brief.
8
Vacated and remanded.
1
N.Y.Crim.Proc.Law Sec. 460.70(1) (McKinney's Consol.Laws, c. 11-A, 1971) (formerly N.Y.Code Crim.Proc. Sec. 456(2)) provides for one free copy of the transcript
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581 So.2d 928 (1991)
Andrea Lemont HENRY, Appellant,
v.
The STATE of Florida, Appellee.
No. 89-2783.
District Court of Appeal of Florida, Third District.
June 11, 1991.
Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
*929 Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
COPE, Judge.
Andrea Henry[1] appeals his convictions of several criminal offenses and his life sentence as an habitual offender.
We conclude that defendant's challenges to his convictions for aggravated assault with a firearm and aggravated battery with a firearm are without merit. The convictions are affirmed.
Defendant's second point on appeal has merit. Defendant was found to be an habitual offender pursuant to section 775.084, Florida Statutes (Supp. 1988).[2] He does not challenge the validity of that finding. After the finding was made, the State argued that under the habitual offender statute, the trial court had no alternative but to sentence defendant to a life term. See § 775.084(4), Fla. Stat. (Supp. 1988). While the record is not entirely clear, it appears that the trial court accepted the State's argument about the mandatory nature of the penalty. Defendant was sentenced to life on count II (armed burglary of an occupied dwelling) and lesser terms on the other counts.
Paragraph 775.084(4)(a), Florida Statutes (Supp. 1988), provides:
The court, in conformity with the procedure established in subsection (3), shall sentence the habitual felony offender as follows:
1. In the case of a felony of the first degree, for life.
2. In the case of a felony of the second degree, for a term of years not exceeding 30.
3. In the case of a felony of the third degree, for a term of years not exceeding 10.
Contrary to the State's assertion, the "shall sentence" provision of the habitual offender statute, id. § 775.084(4)(a), is permissive, not mandatory. State v. Brown, 530 So.2d 51, 53 (Fla. 1988) (construing 1985 statute); McNair v. State, 563 So.2d 804 (Fla. 3d DCA 1990) (1987 statute).[3] As was true in Smith v. State, 574 So.2d 1195 (Fla. 3d DCA 1991), we are "uncertain as to whether the court believed that it could in fact decline to impose that [life] sentence. We therefore believe that the interests of justice require us to vacate the sentence so that the trial judge may consider the matter as one within his discretion." Id. at 1197 (footnote omitted). See also Berezovsky v. State, 350 So.2d 80, 80-81 (Fla. 1977); Doe v. State, 499 So.2d 13, 14 (Fla. 3d DCA 1986); Glosson v. Solomon, 490 So.2d 94, 95 (Fla. 3d DCA 1986). On remand, the trial court may, of course, reimpose the life sentence, or a term less than life, under the statutory procedure. See State v. Brown, 530 So.2d at 53 n. 2 ("the legislative intent clearly was only to make the life sentence a permissive maximum penalty."). We decline to follow Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), and note, as did Smith, that the Donald court nowhere mentions Brown with which, in our view, Donald is in conflict.[4]
The State argues that the 1988 and 1989 amendments to the habitual offender statute undercut Brown on the point at issue here. See ch. 89-280, § 1, Laws of Fla.; ch. 88-131, § 6, Laws of Fla. We disagree. Brown was announced after adjournment of the 1988 legislature. See 1988 Laws of Fla., at i. While the 1988 legislation made several substantive changes in the habitual offender statute, the legislation did not address the "shall sentence" provision of the *930 habitual offender statute. In 1989, after Brown had been announced, the legislature amended another part of the habitual offender statute but reenacted paragraph 775.084(4)(a) the "shall sentence" provision without change. Under ordinary principles of statutory construction, that is at least some indication that the legislature approved of the Brown court's construction of the unchanged part of the statute. See Davies v. Bossert, 449 So.2d 418, 420 (Fla. 3d DCA 1984).
While we are bound by Brown, the Brown interpretation is also the most logical one. It results in a harmonious reading of the sentencing provisions of paragraphs (4)(a) (habitual felony offender) and (4)(b) (habitual violent felony offender). It is illogical to assume that the legislature intended to confer sentencing discretion in subparagraphs 775.084(4)(a)(2) and (3) ("a term of years not exceeding 30" and "a term of years not exceeding 10") and throughout paragraph 775.084(4)(b) ("may sentence the habitual violent felony offender as follows") (emphasis added), while eliminating sentencing discretion solely for habitual felony offenders convicted of first degree felonies. There is no reasonable or discernible basis for such a distinction. See S.R. v. State, 346 So.2d 1018, 1019 (Fla. 1977) (interpretation of the word "shall" as mandatory or discretionary "depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute.").
The interpretation advanced by the State would lead to one other anomaly which should be mentioned. A trial court can opt out of the habitual offender statute "[i]f the court decides that imposition of sentence under this section is not necessary for the protection of the public... ." § 775.084(4)(c) (emphasis added). There will undoubtedly be cases in which the trial court concludes that an extended sentence is necessary for protection of the public but not a life sentence. Under the interpretation advanced by the State, in such a circumstance the sentencing judge would only be able to impose a guidelines sentence. We do not think the legislature intended to create an all or nothing, life or guidelines choice in that situation.[5]
Finally, the State argues that the sentence must be affirmed under this court's decision in McNair. The State interprets McNair as holding that a trial court's misapprehension about its sentencing discretion under the habitual offender statute will not be a basis for reversal so long as a legal sentence is imposed. That is an incorrect reading of McNair.
McNair was decided under the 1987 version of the habitual offender statute. 563 So.2d at 805. At that time, habitual offender dispositions were subject to the sentencing guidelines. State v. Brown, 530 So.2d at 53. Since the trial court had sentenced McNair within the guidelines, the McNair court concluded that any misapprehension about the habitual offender statute was immaterial; the guidelines disposition was required in any event by Brown.[6] We reach a different result under the 1988 and later statutes; there the guidelines are inapplicable and a misapprehension by the trial court of its sentencing discretion is material to the sentencing decision. Under Smith, there must be a new sentencing hearing.
Conviction affirmed; reversed and remanded for a new sentencing hearing.
NOTES
[1] The defendant has been referred to in the briefs as Andre Henry. The judgment was entered against Andrea Lemont Henry.
[2] The 1988 statute was in effect at the time the offenses were committed.
[3] Although the portion of the statute just cited was amended in 1988, see ch. 88-131, § 6, Laws of Fla., the "shall sentence" provision was carried forward without change.
[4] We certify express and direct conflict with Donald; State v. Allen, 573 So.2d 178 (Fla. 2d DCA 1991); and Pittman v. State, 570 So.2d 1045 (Fla. 1st DCA 1990).
[5] By way of illustration, the guidelines recommended range was 12-17 years in the present case.
[6] Under the 1987 statute, this would be true absent a basis for a departure sentence.
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961 F.2d 575
58 Fair Empl.Prac.Cas. (BNA) 869,58 Empl. Prac. Dec. P 41,393, 60 USLW 2656
Susie J. JACKSON, Plaintiff-Appellant,v.RICHARDS MEDICAL COMPANY, Defendant-Appellee.
No. 91-5473.
United States Court of Appeals,Sixth Circuit.
Argued Nov. 7, 1991.Decided April 10, 1992.
Dwight E. Duncan (argued & briefed), Memphis, Tenn., for plaintiff-appellant.
Thomas L. Henderson (argued & briefed), Frederick J. Lewis (briefed), Frederick J. Lewis, McKnight, Hudson, Lewis, Henderson & Clark, Memphis, Tenn., for defendant-appellee.
Carolyn L. Wheeler (briefed), E.E.O.C., Washington, D.C., for amicus curiae E.E.O.C.
Before: MERRITT, Chief Judge, GUY, Circuit Judge, and WELLFORD, Senior Circuit Judge.
MERRITT, Chief Judge.
1
The plaintiff, Susie J. Jackson, appeals the District Court's dismissal of her Title VII, Age Discrimination, and 42 U.S.C. § 1981 claims. We hold that the plaintiff's ADEA and § 1981 claims are time-barred. Further, we hold that as a matter of law the plaintiff fails to state a claim of race discrimination under Title VII.
2
Though the panel is unanimous as to the ultimate disposition of this case, Judges Guy and Wellford disagree with part IV B of this opinion. Therefore, Judge Guy writes for the court as to the issue discussed in part IV B of this opinion.
I.
3
Ms. Jackson, an African American, was born in 1939. In 1976 she began work as a "Shop Order Clerk" at Richards Medical Company, the defendant. On January 12, 1984 she received notice that she was subject to a layoff from her position because her job functions were going to be combined with those of the "Engineering Micrographics Clerk." Before effecting the layoff, the defendant administered a written exam to Ms. Jackson to determine whether she met minimum qualifications for the new clerk position. On February 20, 1984, the Engineering Micrographics Clerk position was awarded to Ms. Gwendolyn Richmond, also of African American descent. Ms. Richmond was less than 40 years of age and had been with Richards Medical Company a shorter period of time than the plaintiff when awarded the job. On February 24, Ms. Jackson was laid off at the age of 44.
4
The plaintiff, acting without counsel, filed a timely charge with the Equal Employment Opportunity Commission and the Tennessee Human Rights Commission alleging that the defendant discriminated against her on the basis of race. On December 31, 1984, the EEOC found that there was "not reasonable cause" to support the allegation. The Commission issued a Notice of Right to Sue which allowed the plaintiff 90 days within which to file suit against her former employer. After the right to sue notice was issued, the plaintiff told the EEOC that the defendant had "doctored" the scores on her written exam. Before the expiration of the 90 day right to sue period, the EEOC withdrew its no cause determination. After investigating the new allegation, the EEOC, on May 31, 1985, issued a second no cause determination and a second right to sue notice. On August 30, 1985, the plaintiff filed suit in the District Court for the Western District of Tennessee, alleging that the defendant terminated her because of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. The plaintiff filed her Complaint within 90 days of the issuance of her second right to sue notice.
5
On August 27, 1985, the plaintiff, still pro se, filed a second discrimination charge against the defendant with the EEOC--this time on the basis of age. The plaintiff acquired counsel in November 1985. In February 1986, the plaintiff amended her Complaint to include a cause of action under Section 4(a)(1) of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. In response, the defendant filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment. In August 1989, the District Court permitted the plaintiff to further amend her Complaint to include a claim under 42 U.S.C. § 1981, alleging that the defendant failed to promote, or in the alternative, discharged the plaintiff because of her race.
6
The District Court dismissed the plaintiff's three claims. The Court held that, under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), § 1981 did not extend to the plaintiff's failure to promote and discriminatory discharge claims. The Court dismissed the ADEA and Title VII actions as time-barred. With respect to the ADEA claim, it held that the plaintiff failed to file her ADEA charge with the EEOC within 300 days of her discharge. As for the Title VII claim, the District Court stated that the plaintiff's allegation that the defendant doctored her exam scores amounted to an ill-disguised attempt to extend the 90 day limitations period of the first right to sue notice. The Court relied on Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980), for the proposition that the issuance of a new notice by the EEOC could be challenged as an improper attempt to extend the initial notice period. Characterizing as "baseless" the plaintiff's exam allegation, the Court held that the plaintiff could not avoid the limitation period established by the first notice. Because the first 90-day limitation period had expired when the plaintiff filed her District Court Complaint, the Court held the Title VII action time-barred.
7
The plaintiff appeals the dismissal of her claims. The EEOC requested leave to file a brief as amicus curiae supporting the plaintiff's position that the District Court erred in declaring the Title VII action untimely. We granted this request and offered the defendant an opportunity to respond to the EEOC's brief.
II. Section 1981 Claim
8
The District Court dismissed the plaintiff's § 1981 action on the ground that she failed to state a claim meeting the requirements set forth by the Supreme Court in Patterson. Our standard of review of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is that "to be granted, there must be no set of facts which would entitle the plaintiff to recover. Matters outside the pleadings are not to be considered, and all well-pleaded facts must be taken as true." Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989) (citations omitted). As it happens, we need not address the holding of Patterson, the plaintiff's attempt to bypass Patterson, or Congress' overruling of Patterson,1 for we find that the plaintiff's § 1981 action is time-barred.
9
"Because § 1981 ... does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987). This Circuit has held that a state's limitations period for personal injury actions is "the most analogous statute" to § 1981. Johnson v. Railway Express Agency, Inc., 489 F.2d 525, 529 (6th Cir.1973). Accord Goodman, 482 U.S. at 661-64, 107 S.Ct. at 2621-22 (rejecting the application of Pennsylvania's 6-year statute of limitations governing claims on contracts and affirming the Second Circuit's application of Pennsylvania's 2-year limitations period governing personal injury actions). Tennessee law provides that civil actions brought under the federal civil rights statutes shall be commenced within one year after the cause of action accrued. TENN. CODE ANN. § 28-3-104 (1985).
10
Ms. Jackson was discharged in February 1984. She did not bring her § 1981 claim until August 1989. Even if we were to accept the plaintiff's argument that her § 1981 action relates back to the filing of her Title VII Complaint (August 1985) her § 1981 action would be time-barred. Consequently, we affirm the District Court's dismissal of the plaintiff's § 1981 action, albeit for other reasons. See Foster v. Kassulke, 898 F.2d 1144, 1146 (6th Cir.1990).
III. ADEA Claim
11
The District Court dismissed plaintiff's ADEA action as time-barred. In considering a motion to dismiss for lack of subject matter jurisdiction, the complaint is to be liberally construed and all uncontroverted factual allegations on the face of the complaint are to be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
12
The timely filing of a charge of age discrimination with the EEOC is ordinarily a condition precedent to an ADEA lawsuit. The ADEA statute sets out two limitations periods for the filing of a charge: 180 days after the alleged unlawful practice occurred, or 300 days after the alleged unlawful practice occurred. 29 U.S.C. § 626(d). The 300 day period applies where the alleged unlawful practice occurs in a state which has enacted its own laws prohibiting age discrimination in employment, and has authorized a state agency to seek relief for the individual suffering the discrimination. 29 U.S.C. § 633(b). Such a state is commonly known as a "deferral" state. The purpose of the longer limitation period is to give deferral states time to act upon the ADEA complaint, in accordance with Congress' intent that "informal methods of conciliation, conference, and persuasion" be used to eliminate the discriminatory practice before an action is initiated in the courts. 29 U.S.C. § 626(b). While failure to adhere to the limitation period may result in the suit's dismissal as time-barred, the 300/180 day filing periods under the ADEA are not "jurisdictional prerequisites" to maintaining a legal action. Rather, the ADEA filing period is more in the nature of a statute of limitations that is subject to equitable modification. See Wright v. State of Tennessee, 628 F.2d 949 (6th Cir.1980) (en banc); Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir.1988) (plaintiff may modify the length of ADEA filing period through equitable estoppel and equitable tolling). See also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (analogous filing period under Title VII is subject to equitable modification).
13
Tennessee is a deferral state. TENN. CODE ANN. § 4-21-101 (1985) ("It is the purpose and intent of the general assembly by [the enactment of the Tennessee Human Rights Act] to provide for execution within Tennessee of the policies embodied in ... the Age Discrimination of Employment Act of 1967, as amended ...").2 Whether the limitations period in this case began to run January 12, 1984 (the date the plaintiff was notified that she would be laid off), February 24, 1984 (the date she was actually laid off), or August 24, 1984 (the date her layoff became permanent) is not important because the plaintiff filed her age discrimination charge with the EEOC on August 27, 1985, more than 300 days from the most recent date of the alleged discrimination.
14
In the face of the statute of limitations the plaintiff asserts that the limitations period should be equitably tolled. Specifically, the plaintiff states that equitable tolling is appropriate because "there is no evidence that she was ever advised by the EEOC, or that she could have been aware of her rights under ADEA prior to August 27, 1985." The plaintiff, in other words, pleads ignorance of the law.
15
Judge Bownes, in Kale v. Combined Ins. Co. of America, 861 F.2d 746 (1st Cir.1988), offers an analysis for ADEA cases "where a plaintiff is claiming excusable ignorance of the filing deadline." Id. at 753.
16
[A] court should initially determine whether the plaintiff had either actual or constructive knowledge of his rights under the ADEA. Actual knowledge occurs where an employee either learns or is told of his ADEA rights, even if he becomes only generally aware of the fact that there is a statute outlawing age discrimination and providing relief therefor.... Constructive knowledge, on the other hand, is "attributed" to an employee in situations where he has retained an attorney ... or where an employer has fulfilled his statutory duty by conspicuously posting the official EEOC notices that are designed to inform employees of their ADEA rights....
17
If the court finds that the plaintiff knew, actually or constructively, of his ADEA rights, ordinarily there could be no equitable tolling based on excusable ignorance.... If, however, the employee has no knowledge of his rights and his ignorance is due to misleading conduct by the defendant or failure of the defendant to post the required EEOC notices, then an initial case for equitable tolling has been made.
18
Id. (citations omitted).
19
At first glance, the plaintiff appears not to possess either actual or constructive knowledge. There is no evidence that the plaintiff had actual knowledge of her rights under the ADEA prior to the filing of her ADEA charge. And constructive knowledge cannot be automatically attributed to the plaintiff because the plaintiff did not retain an attorney until after she filed her ADEA charge. The record is silent as to whether the defendant posted an ADEA notice. Yet, the plaintiff was by no means ignorant of the existence of employment discrimination laws, or the channels through which to protect her employment rights. Before being laid off (but after receiving notice that she would be laid off) the plaintiff visited the EEOC office and filed a charge of employment discrimination. Further, in her response to the defendant's motion to dismiss, the plaintiff admits to having "worked closely with the EEOC beginning February 15, 1984." Moreover, upon the appointment of the younger Ms. Richmond as Micrographics Clerk on February 20, 1984, the plaintiff effectively became aware of a possible age discrimination charge. The plaintiff, however, did not discuss such a charge with the EEOC, seek legal counsel, or otherwise pursue this claim until one and one-half years later. On these facts, we find that the plaintiff had constructive knowledge of her rights under the ADEA.
20
We take guidance from the Eleventh Circuit's decision in a closely analogous case, McClinton v. Alabama By-Products Corp., 743 F.2d 1483 (11th Cir.1984). In McClinton, a 55-year old plaintiff was discharged from his job, only to be replaced by a 27-year old worker. Friends told the plaintiff that he might have a "discrimination suit." Within thirty days of his termination he visited the local Labor Department office and telephoned the Labor Relations Board, but to no avail. The plaintiff then waited nearly a year before obtaining counsel and filing an ADEA charge with the EEOC. The McClinton court refused to toll the statute of limitations, stating:
21
When an employee is generally aware of his rights, ignorance of specific legal rights or failure to seek legal advice should not toll the [limitation] period. A contrary result would permit an aggrieved employee aware of his general rights to sit on those rights until he leisurely decided to take action. This would be inconsistent with and undermine the underlying ADEA policy of encouraging speedy, non-judicial resolutions to age discrimination employment disputes.
22
Id. at 1486. We adopt the reasoning of the Eleventh Circuit in the present case. Accordingly, we reject the plaintiff's claim that excusable ignorance should toll the statute of limitations.
23
The plaintiff states in her brief that "the employer's failure to post notices of rights under ADEA" may constitute misconduct by an employer capable of tolling the statute of limitations. The plaintiff, however, does not allege that the defendant, Richards Medical Company, engaged in such misconduct.3 Even if we were to infer such an allegation, the record does not reveal that the plaintiff pursued it below, nor does the brief provide support for such an allegation on appeal. Vague and conclusory allegations of misconduct are insufficient to state a claim. Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.1987).
24
In sum, the equities do not favor tolling the 300 day limitations period.
IV. Title VII Claim
25
The District Court dismissed the plaintiff's Title VII action for failure to file the complaint within 90 days after receipt of the first right to sue letter issued by the EEOC to the plaintiff. The District Court accepted the defendant's argument that the plaintiff's request that the Commission withdraw its first no cause determination "was merely an attempt to avoid the statute of limitations by manipulating the EEOC to obtain a notice of right to sue dated after December 1984." Memorandum Opinion at 4. The court noted that while the Commission has discretion to withdraw its determination and to issue multiple notices of right to sue, as happened here, "these [notices] can be challenged by showing that the sole purpose of reconsideration was to extend the initial notice period," Id. (citing Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980)). In Gonzalez the Commission decided to reconsider a no cause determination forty-one days after it had issued its right to sue letter. The Commission ultimately issued a second no cause determination and a second right to sue letter. The Fifth Circuit held that a suit filed within 90 days of the issuance of the second right to sue notice was timely. It noted in dicta, however, that the validity of a second notice could be challenged if "the sole purpose of reconsideration was to extend the initial notice period." Gonzalez, 610 F.2d at 246. It was this dicta on which the District Court relied.
26
The plaintiff and the EEOC, appearing as amicus curiae, assert that the District Court erred in dismissing the Title VII claim as time-barred. The Commission points to the regulations which it has promulgated and notes that they authorize District Directors to reconsider no cause determinations and issue second right to sue letters. The regulations further provide that the 90 day limitations clock begins anew upon the issuance of the second right to sue letter. The Commission argues that courts, as a matter of law, ought to let stand decisions of the District Director made pursuant to these regulations. The defendant, by contrast, argues that we should deem these regulations invalid on the ground that they "impermissibly alter the ... statutory procedure and limitations provisions established by Congress."
27
We thus face two issues. First, are the EEOC regulations governing the reconsideration of Commission determinations valid? Second, if the regulations are valid, can a court review the Commission's decision to reconsider a cause determination? We consider the first issue in part IV A and the second issue in part IV B. Because Judges Guy and Wellford disagree with part IV B of this opinion, Judge Guy writes for the court as to the issue regarding the reviewability of the Commission's reconsideration decision.
28
Our discussion in part IV A proceeds as follows. With respect to the validity of the Commission's regulation, we face two possible standards of review. If the regulation is "substantive," then the level of deference we afford it "depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." EEOC v. Arabian American Oil Co., --- U.S. ----, 111 S.Ct. 1227, 1235, 113 L.Ed.2d 274 (1991) (quoting General Electric v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976)). If, however, the regulation is "procedural," then we apply a different standard of review. Congress authorized the Commission "to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [the Act]." Section 713(a) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(a) (emphasis added). The regulation at issue, 29 C.F.R. § 1601.21 (1984), was promulgated pursuant to § 713(a). See 52 Fed.Reg. 11503, 11504 (1987); 45 Fed.Reg. 48614, 48617 (1980). We must sustain a procedural regulation "so long as it is 'reasonably related to the purposes of the enabling legislation.' Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973) (emphasis added). For reasons explained below, we find that § 1601.21 is a procedural regulation reasonably related to the purposes of § 713(a). We therefore uphold the regulation as valid.
29
Part IV B examines under what circumstances the EEOC's decision to reconsider a cause determination can be challenged in and reviewed by a district court. In dissent, I take the position that the Commission's decision to reconsider a cause determination is not subject to judicial review. A corollary of my position is that the revocation of the previous right to sue letter and vacation of the 90 day limitations period which follow from the decision to reconsider are also immune from judicial scrutiny. Consequently, I would hold that the District Court erred in dismissing the plaintiff's Title VII claim as time-barred.
30
Despite the panel's disagreement over part IV B, we nevertheless affirm the lower court's dismissal of the claim.
A. Validity of EEOC Regulations
31
Title VII of the Civil Rights Act of 1964 embodies Congress' intent and preference that discrimination complaints be resolved through the administrative process rather than through litigation. 42 U.S.C. § 2000e et seq. To this end, Congress required that a series of conditions be fulfilled before a Title VII suit can be brought by a private party. 42 U.S.C. § 2000e-5. For example, the party claiming discrimination must file a charge with the Commission within a specified period of time after the alleged unlawful employment practice occurred. Id.; § 2000e-5(e). The Commission, in turn, must serve notice of the charge on the charged party within ten days after the charge is filed. Id.; § 2000e-5(a), (e). The Commission must then determine whether there is reasonable cause to believe the charge is true, whereupon the Commission may either bring an action against the charged party or dismiss the charge. Id.; § 2000e-5(f)(1). If the charge is dismissed, or if the Commission has not filed an action or has not entered into a conciliation agreement between the affected parties within 180 days from the date the charge was filed, then the Commission shall issue to the charging party a Notice of Right to Sue. Only after these steps have been completed may the charging party bring a civil action, and even then, they must file the complaint within ninety days of receiving the right to sue letter. Id. The purpose of these procedures is "to encourage reconciliation and arbitration of employee grievances prior to litigation." Morgan v. Washington Mfrg. Co., 660 F.2d 710, 711 (6th Cir.1981).
32
To implement Title VII's administrative scheme Congress authorized the Commission "to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [Title VII]." Section 713(a) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(a) (emphasis added). Pursuant to its rulemaking authority under § 713(a), the Commission adopted regulations governing the processing of charges and the issuance of right to sue notices upon the termination of agency review. The regulation concerning reconsideration of determinations appears in Part 1601 of Title 29 of the Code of Federal Regulations, entitled "PROCEDURAL REGULATIONS." Section 1601.1 of Part 1601 informs us that "[t]he regulations set forth in this part contain the procedures established by the [EEOC] for carrying out its responsibilities in the administration and enforcement of Title VII...." 29 C.F.R. § 1601.1 (1984) (emphasis added).4
33
As noted above, 42 U.S.C. § 2000e-5 mandates that the Commission determine whether there is reasonable cause to believe a charge of employment discrimination. If the Commission finds that reasonable cause does not exist, then the Commission must dismiss the charge. Subsections (a) and (b) of § 1601.21 of the Commission's regulations reiterate these powers and duties. 29 C.F.R. § 1601.21(a), (b) (1984).5 Subsection (b), however, goes further. It provides that "[t]he Commission may ... on its own initiative reconsider its [dismissal or no cause determination]." 29 C.F.R. § 1601.21(b) (emphasis added). The Commission's power of reconsideration, unlike its powers of investigation and dismissal, lacks a statutory analog.6
34
Subsection (d) of § 1601.21 delegates to the Commission's District Directors (among others) the Commission's power "to dismiss a charge, make a determination, issue a Letter of determination ... and reconsider determinations." 29 C.F.R. § 1601.21(d) (1984) (emphasis added).7 See also 29 C.F.R. § 1601.19(g). Subsection (d) also elaborates upon the consequences of a District Director's decision to reconsider a dismissal or reasonable cause determination.
35
In cases where the issuing Director decides to reconsider a dismissal ... a notice of intent to reconsider will promptly issue. If such notice of intent to reconsider is issued within 90 days from receipt of a notice of right to sue and the charging party has not filed suit ... the notice of intent to reconsider will vacate the dismissal or letter of determination and revoke the notice of right to sue ... After reconsideration the issuing Director will issue a determination anew ... [W]here the notice of right to sue has been revoked, the issuing Director will ... issue a notice of right to sue anew which will provide the charging party with 90 days within which to bring suit.
36
29 C.F.R. § 1601.21(d)(1) (1984) (emphasis added).8
37
The defendant contends that § 1601.21 is "invalid" because it is not "procedural." The defendant asserts that the regulation "add[s] remedies not provided in Title VII," and asks that we review the regulation under the standard set forth by the Supreme Court in General Electric v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), and applied last term by the Court in EEOC v. Arabian American Oil Co., --- U.S. ----, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ("Aramco "). In Gilbert the Court wrote that "Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title." 429 U.S. at 141, 97 S.Ct. at 410. It went on to state that the level of deference afforded the EEOC " 'will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' " Id. at 142, 97 S.Ct. at 411 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944)). See Aramco, 111 S.Ct. at 1235 (quoting Gilbert ). The defendant argues that when the regulation is examined in light of the Gilbert- Aramco factors, it should be given "no effect." An examination of these two cases, though, reveals that they are inapposite.
38
Gilbert presented the issue whether an employer's exclusion of benefits for disability during pregnancy was a per se violation of Title VII. The Supreme Court found that an EEOC regulation designating pregnancy to be a temporary disability deserving of coverage under an employer disability plan was unsupported by the Act's legislative history and was directly contradicted by two opinion letters issued by the Commission. 429 U.S. at 142-45, 97 S.Ct. at 411-12. Thus, the Court did not defer to the regulation to determine the breadth of Title VII's sex discrimination provisions. Particularly noteworthy is the Court's explicit distinction between the regulations at issue in Gilbert and those falling within § 713(a), 42 U.S.C. § 2000e-12(a). The Gilbert Court made clear that "[n]o one contends ... that the ... regulation [here] is procedural in nature or effect." 429 U.S. at 141, n. 20, 97 S.Ct. at 411, n. 20 (emphasis added).
39
In Aramco, as in Gilbert, the EEOC sought to define the scope of Title VII's coverage. The issue in Aramco was whether Title VII's protection extended to United States citizens employed abroad by American employers. The Commission argued that it did. Once again the Court refused to defer to the Commission's interpretation. Citing Gilbert, the Court found the Commission's position undercut by prior conflicting agency interpretations of Title VII, and by the lack of clear Congressional intent to apply the statute overseas.
40
In both Gilbert and Aramco, the Court declared that it would not defer to EEOC policy purporting to expand the Act's coverage where such policy was unsupported by past agency pronouncements and clear Congressional intent. Courts have framed the general rule emerging from these cases thus: "Section 713(a) of Title VII ... preclude[s] the EEOC from issuing substantive regulations." Emerson Elec. Co. v. Schlesinger, 609 F.2d 898 (8th Cir.1979). Accord EEOC v. Raymond Metal Products Co., 530 F.2d 590, 592-93 (4th Cir.1976) (Congress through section 713(a) intended to restrict the Commission to issuance of procedural rules, and to deny the Commission the power to make substantive rules that create rights and obligations).
41
Section 1601.21, however, is unlike the regulations struck down in Gilbert and Aramco. Looking to its history, function and effect, it is clear that the regulation is procedural, not substantive. When subsections (b) and (d) of § 1601.21 were first published in 1980 as an interim rule for notice and comment, the Chair of the EEOC explained that "[t]he Commission needs to retain flexibility in cases involving private respondents because the Commission ordinarily may not sue or intervene in suits or issues on which it has not found cause and attempted conciliation." 45 Fed.Reg. 48614, 48615 (1980). The Chair continued,
42
The Commission's experience is that in reviewing for possible litigation, information may be discovered which may give rise to the Commission believing that an administrative error had been made in making a finding of no cause. The Commission may wish to reconsider at that point and after complying with Title VII procedures, bring suit. Thus it is essential that the Commission be able to reconsider determinations....
43
Id.
44
The Commission's power to reconsider determinations is consonant with Congress's intent that discrimination complaints be resolved administratively. Experience taught the Commission both that new evidence may come to light and that Commission staff may make mistakes when compiling and assessing the charging party's case file. Consequently, the Commission erected a safety net to catch those cases inadequately handled in their initial administrative processing. Specifically, it promulgated subsections (b) and (d) of § 1601.21 which provide the Commission additional opportunity to investigate, evaluate, and if necessary, conciliate a charge of employment discrimination. Central to the safety net is the rule by which the previous right to sue letter is revoked and the 90 day limitations period vacated when the Commission decides to reconsider a no cause determination. By revoking the right to sue letter and vacating the limitations period, the Commission is able to retain jurisdiction over the charge and carry out its administrative responsibilities. Nothing in the terms or operation of § 1601.21 indicate that the regulation expands the scope of Title VII's coverage or in any way creates additional rights under the Act. To the contrary, the regulation's history, language, and implementation reveal it to be a simple housekeeping measure, procedural in nature and effect.
45
This conclusion is supported by Raymond Metal Products, 530 F.2d 590 (4th Cir.1976). There, the court examined a predecessor to § 1601.21(b), 29 C.F.R. § 1601.19b(d) (1976). That regulation, like its successor at issue here, explicitly authorized District Directors to reconsider determinations as to reasonable cause.9 The court held that the regulation "conforms to the statutory requirement that it be procedural." 530 F.2d at 594. It "does not define the rights and duties of the parties. Instead, it prescribes the methods by which the agency acts." 530 F.2d at 593. See also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809 (4th Cir.1983) (EEOC's rules and procedures allowing disclosure of information procured by it in the course of its investigation to charging parties are procedural rather than substantive and thus, are valid under § 713(a) of Title VII, 42 U.S.C. § 2000e-12(a)); Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 669-70 (4th Cir.1977) (agreement between EEOC and Office of Federal Contract Compliance Programs for exchange of charges and information does not affect substantive rights of employers); Hall v. EEOC, 456 F.Supp. 695, 702 (N.D.Cal.1978) (implementation of rapid charge processing rules does not determine rights or obligations of parties); Sears Roebuck & Co. v. EEOC, 435 F.Supp. 751, 761 (D.D.C.1977) (EEOC regulation, 29 C.F.R. § 1601.20 (1976), concerning the disclosure of investigative data is merely procedural). Accordingly, we hold that the EEOC's power to reconsider cause and no cause determinations, as established by § 1601.21 of the Commission's regulations, is procedural in purpose and effect.
46
Put differently, § 1601.21 derives its authority from § 713(a) of Title VII which authorizes the Commission "to issue, amend, or rescind suitable procedural regulations to carry out the provisions of [the Act]." The Supreme Court has set out the standard of review for regulations promulgated pursuant to an "empowering provision of a statute [which] states simply that the agency may 'make ... such rules and regulations as may be necessary to carry out the provisions of this Act.' " Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973). Under Mourning, we sustain a regulation promulgated pursuant to § 713(a) "so long as it is 'reasonably related to the purposes of the enabling legislation.' " Id.
47
The analysis which led us to conclude the regulation is procedural persuades us that it is reasonably related to the purpose of § 713(a). Specifically, Congress intended that employment discrimination claims be resolved administratively. Towards this end, Congress conferred upon the Commission power to implement procedures which will facilitate its processing of charges. The Commission, in turn, determined that it needed the power to reconsider cause determinations. Thus it enacted procedural regulation 1601.21. That regulation both permits reconsideration and provides that a prior right to sue letter is vacated when reconsideration is undertaken. As one court has noted, "[i]f the [Commission] ... does not have the power to rescind [its] earlier notice of right-to-sue, then [its] authority to fully reconsider is severely circumscribed." Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir.1980).
48
To require a discharged employee to bring suit against his employer at a time when the District Director has reconsidered his earlier determination of no-cause ... and the administrative processes designed to effect conciliation and avoid litigation are in the process of going forward, is to us a rather strange requirement.
49
Id. at 1086-87 (emphasis in original).
50
We agree. Accordingly, we find that subsections (b) and (d) of 29 C.F.R. § 1601.21 (1984) meet the reasonable relationship requirement of Mourning. The regulation is therefore valid.
51
B. Reviewability of Commission's Reconsideration Decision
52
The defendant argued below, and the District Court agreed, that the plaintiff fraudulently induced the Commission to issue a notice of reconsideration and to vacate the 90 day limitations period attaching to the initial right to sue letter. As a result, the Court refused to recognize the limitations period attaching to the second right to sue letter issued after the Commission reconsidered its first no cause determination. Instead, the Court looked to the first 90 day period, determined that the plaintiff failed to file suit within that period, and dismissed the plaintiff's Title VII claim as time-barred.
53
I conclude that the EEOC's decision to reconsider a cause determination, and the procedural consequences attaching to such a decision, should not be subject to judicial review. Therefore, I would hold that the District Court erred when it reviewed the Commission's reconsideration decision.
54
The issue here does not implicate the integrity of the EEOC's decision-making process where that process in turn directly determines whether an individual will be granted or denied tangible benefits within the Commission's power to disburse. At issue is the deference to be accorded the EEOC's decision whether or not to re-visit its prior refusal to advocate on an individual's behalf. To permit courts to review what is a completely discretionary decision having only a very attenuated impact on either the plaintiff or defendant to a Title VII action serves no purpose.
55
Subsection (d) of § 1601.21 of the Commission's regulations expressly provides that "for determinations issued by his or her office, [each District Director] may on his or her own initiative reconsider such determinations." As the Commission notes in its brief, the decision to reconsider a reasonable cause determination and reopen a case file may be prompted by any number of factors. Assuming for the sake of argument that the plaintiff's reconsideration request in this case was fraudulent--that it was made solely to extend the limitations period--the small benefit to be gained from reviewing the Commission's decision is substantially outweighed by the judicial expense and administrative uncertainty caused by the review. To review a Commission's reconsideration decision adequately, the court must hold a mini-hearing. Though this inquiry may allow the court to avoid the merits by dismissing the discrimination claim on jurisdictional grounds, the judicial savings are illusory. Rather, a new layer of review and additional grounds for appeal are spawned by a court's review of the Commission's reconsideration power--a power characterized by broad discretion.
56
What is more, though judicial review of an EEOC reconsideration decision may identify previously undetected fraud, this gain in accuracy likely will be offset by a loss of administrative effectiveness. The EEOC argues that the court's ability to second guess Commission reconsideration decisions "will create uncertainty that will give charging parties and employers a strong incentive not to ask the Commission to reconsider its determinations, since they will not know whether or not such reconsideration will stop the 90 day clock." Amicus Brief at 16. If parties do not ask for reconsideration when they legitimately believe their case deserves reconsideration, then the Commission will be deprived "of the opportunity to correct a mistaken determination it issued before the parties resort to the judicial forum." Id. Allowing courts to infringe on the Commission's discretion to reconsider cause determinations can impede administrative resolution of discrimination claims by forcing premature litigation.
57
By refusing to recognize the Commission's revocation of the prior right to sue letter, the District Court, in effect, declared that the Commission is unable to protect itself against fraud by a charging party. Because judicial review of Commission reconsideration decisions serves neither the goals of Title VII nor principles of judicial economy, I would adopt a blanket rule insulating from judicial review Commission decisions to reconsider determinations as to reasonable cause. Once the Commission or an authorized official decides to reconsider a reasonable cause determination and so notifies the parties, the previous right to sue notice automatically would be revoked, in accordance with the 29 C.F.R. § 1601.21. Further, the 90 day limitations period would begin anew upon the issuance of a subsequent right to sue letter by the Commission. In the interim between the revocation of previous right to sue letter and the issuance of another one, the charging party would not be able to file suit.10 Naturally, I do not mean to intimate that the courts' responsibility for reviewing the merits of an employment discrimination claim should be diminished in any way.
58
Because the plaintiff brought suit within 90 days of the issuance of the second right to sue notice, I would hold that the District Court erred in dismissing as time-barred the plaintiff's Title VII claim.11
C. Merits
59
Proceeding to the merits, we affirm the District Court's dismissal of the plaintiff's Title VII claim, albeit on different grounds. In a Title VII employment discrimination case, the plaintiff bears the initial burden of submitting evidence to support a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). More precisely, the plaintiff must produce "evidence sufficiently strong to raise an inference that [the employer's conduct was] racially motivated." McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C.Cir.1982). Reviewing the record, we find no facts from which to infer discriminatory treatment. We note in particular that the defendant hired another black woman shortly after notifying Ms. Jackson of her impending layoff. This fact strongly discredits the plaintiff's Title VII claim.12 In sum, the Title VII action was properly dismissed.
V.
60
For the foregoing reasons, we AFFIRM the District Court's dismissal of the plaintiff's § 1981, ADEA, and Title VII claims.
61
RALPH B. GUY, Jr., Circuit Judge, concurring in part and dissenting in part.
62
I agree with all of Judge Merritt's opinion, except Part IV B, from which I dissent. In Part IV B, Judge Merritt writes: "[T]he EEOC's decision to reconsider a cause determination, and the procedural consequences attaching to such a decision, should not be subject to judicial review." In my view, we are not considering the right of a district court to engage in a review of the EEOC's decision to reconsider a matter. Rather, the district court here looked at the motives of the plaintiff in the case before him and found that the plaintiff's motion for reconsideration was merely a subterfuge designed to extend the time in which to bring suit. I believe that a district judge should retain the right to make such a determination. I express no opinion on the general question of the scope of judicial review, if any, of an EEOC reconsideration determination because I find it unnecessary to reach that issue in deciding this case.
63
WELLFORD, Senior Circuit Judge, concurring.
64
I concur in Judge Merritt's opinion except as to part IVB thereof. I am in agreement with Judge Guy's separate opinion that holds that EEOC's decision to reconsider, even if made within ninety days, is, under appropriate circumstances, subject to judicial review. I likewise agree with Judge Guy that a district court judge retains the right to make the kind of determination which was reached in this case. I would affirm the district court's decision on this basis as well as for the other reasons given by Judge Merritt.
65
Finally, I would hold that under comparable circumstances where the basis for EEOC reconsideration is a claimant's unsubstantiated claim, not based upon newly discovered evidence, judicial review is appropriate to preclude an unwarranted extension of time, beyond the statutory scheme, in which to file a complaint.
1
The Civil Rights Act of 1991, Pub.L. No. 102-166, signed into law November 21, 1991, overturns Patterson's interpretation of the § 1981 term "make and enforce contracts."
2
Tennessee's age discrimination law took effect shortly after this court's en banc decision in Wright v. State of Tennessee, 628 F.2d 949 (6th Cir.1980), in which we held that the ADEA notice requirement is subject to equitable modification. Thus, in Wright we applied the 180 day limitations period to the plaintiff's ADEA action. 29 U.S.C. § 626(d)(1)
3
Part IV of the plaintiff's brief simply states that "[e]quitable tolling is appropriate when the party against whom it is asserted is guilty of misconduct.... An example of such misconduct may be the employer's failure to post notices of rights under ADEA...." (citations omitted)
4
Textual citations to the regulations refer to those in effect during 1984-85, the time during which the EEOC acted upon the plaintiff's charges. The regulations have since been revised, and where appropriate, we note this fact
5
Section 1601.21(a) appears in slightly expanded form as § 1601.21(a) in the 1991 version of the Commission regulations. Section 1601.21(b) appears unaltered as § 1601.21(b) in the 1991 version of the Commission regulations
6
The absence of a statutory analog does not render the regulation invalid, for "[t]he power to reconsider is inherent in the power to decide." Albertson v. Federal Communications Commission, 182 F.2d 397, 399 (D.C.Cir.1950). See also 45 Fed.Reg. 73035 (1980) (citing Albertson for EEOC's authority to promulgate subsections (b) and (d) of § 1601.21)
7
Section 1601.21(d) (1984) appears with minor changes as § 1601.21(d) in the 1991 version of the Commission regulations
8
Section 1601.21(d)(1) appears unaltered as § 1601.21(d)(1) in the 1991 version of the Commission regulations
9
29 C.F.R. § 1601.19b(d) (1976) provided in relevant part that:
The District Directors ... may, upon completion of an investigation, dismiss charges, make and issue determination as to reasonable cause, and serve a copy thereof upon the parties, and make and approve conciliation agreements in those cases where such authority has been delegated to them by the Commission.... The District Directors ... may, however, on their own motion, reconsider their determination at any time and, when they do so, they shall promptly notify the [affected parties] ... of their subsequent decision on reconsideration.
Section 1601.19b(d) (1976) differs from the 1984 and 1991 regulations in that it does not state that a decision to reconsider will revoke a previously issued right to sue letter. This difference, though, goes to agency procedure: it does not affect the substantive rights of the parties.
10
Rule 4(a)4 of the Federal Rules of Appellate Procedure imposes a similar restriction on parties seeking to appeal a district court judgment. That rule states that a timely served Motion to Reconsider tolls the appeals period until entry of the order granting or denying the motion. Both Rule 4(a)4 and the EEOC regulations promote judicial economy by preventing a reviewing court from entertaining a case until the body below has completed its adjudicatory or conciliatory functions
11
This result would also accord with equity in this case. When Ms. Jackson asked for reconsideration of the EEOC's no-cause determination, she had three weeks remaining before the expiration of the 90 day period attaching to her first right to sue notice. Had the Commission thought that there was no basis for the request, as the District Court concluded, it could have so informed Ms. Jackson when it received her request. Ms. Jackson would then have had ample time to file suit. As it happened, Ms. Jackson was entitled to rely on the Commission's decision to withdraw its determination, and the regulations setting forth the effect of that decision. In cases where the Commission has erroneously led a charging party to believe the administrative process was not complete, thus causing that party to miss the deadline for filing a complaint, courts have consistently applied principles of equitable tolling to prevent the party from being penalized for the Commission's mistakes. See, e.g., White v. Dallas Independent School Dist., 581 F.2d 556, 562-63 (5th Cir.1978) (en banc); Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333, 1336 (5th Cir.1977); Ferguson v. The Kroger Company, 545 F.2d 1034 (6th Cir.1976); DeMatteis v. Eastman Kodak Co., 520 F.2d 409, 411 (2d Cir.1975). To time-bar Ms. Jackson, when she has relied on the administrative process, would place her in a worse predicament than the plaintiffs in the above-mentioned cases to whom the courts afforded procedural relief
12
We wish to make clear, however, that the fact that an employer replaces a Title VII plaintiff with a person from within the same protected class as the plaintiff is not, by itself, sufficient grounds for dismissing a Title VII claim. Unlike the ADEA statute, Title VII does not require that the plaintiff, as part of a prima facie case, show that he or she was "replaced by a person outside the protected class." Compare Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (6th Cir.1989) ("The elements of a prima facie case of age discrimination require that the charging party demonstrate that ... (4) ... she was replaced by a person not a member of the protected class.") with Tye v. Polaris Joint Vocational School Bd. of Educ., 811 F.2d 315, 317 n. 1 (6th Cir.), cert. denied, 484 U.S. 924, 108 S.Ct. 285, 98 L.Ed.2d 246 (1987) ("As this circuit has previously noted, important differences exist between the type of discrimination actionable under Title VII and age discrimination under the ADEA.... Because of [the] differences, cases interpreting the procedural framework under one statute are not automatically applicable to the other," (citing Laugesen v. Anaconda Co., 510 F.2d 307, 313 n. 4 (6th Cir.1975)). As the Eighth Circuit has observed, "[c]ertainly, if a woman alleging sex discrimination is replaced by a female, this fact is relevant in evaluating the employer's motive. Nevertheless, it is entirely conceivable that a woman discharged and eventually replaced by another woman may be able to establish that she was the object of impermissible discrimination related to her gender." Walker v. St. Anthony's Medical Center, 881 F.2d 554, 558 (8th Cir.1989). Accord Meiri v. Dacon, 759 F.2d 989, 995-96 (2d Cir.1985) (requiring a Title VII plaintiff to demonstrate that he or she was replaced by a person outside the protected class "is inappropriate and at odds with the policies underlying Title VII."); Giannotti v. Foundry Cafe, 582 F.Supp. 503, 506 (D.Conn.1984)
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680 F.3d 1123 (2012)
NATIVE VILLAGE OF POINT HOPE; Alaska Wilderness League; Center for Biological Diversity; Defenders of Wildlife; Natural Resources Defense Council; National Audubon Society, Inc.; Northern Alaska Environmental Center; Oceana; Pacific Environment; Resisting Environmental Destruction on Indigenous Lands, Redoil; Sierra Club; The Wilderness Society, Inc.; Greenpeace, Inc., Petitioners, *1124
v.
Kenneth Lee SALAZAR, Secretary of the Interior; Bureau of Ocean Energy Management, Regulation and Enforcement, Respondents,
State of Alaska; Shell Offshore, Respondents-Intervenors.
Inupiat Community of the Arctic Slope, Petitioner,
v.
Kenneth Lee Salazar, Secretary of the Interior; Bureau of Ocean Energy Management, Regulation and Enforcement, Respondents,
State of Alaska; Shell Offshore Inc., Respondents-Intervenors.
Nos. 11-72891, 11-72943.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 15, 2012.
Filed May 25, 2012.
*1125 Holly A. Harris (argued), Earthjustice, Juneau, Alaska; Christopher Winter, Crag Law Center, Portland, Oregon, for petitioners Native Village of Point Hope, et al. *1126 and Inupiat Community of the Arctic Slope.
David C. Shilton (argued), U.S. Department of Justice, Washington, D.C., for respondent Ken Salazar, Secretary of the Interior, and Bureau of Ocean Management.
Kathleen M. Sullivan (argued), Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York; Kyle W. Parker, Crowell & Moring LLP, Anchorage, Alaska, for respondent-intervenor Shell Offshore Inc., et al.
Rebecca Kruse, State of Alaska Department of Law, Anchorage, Alaska, for respondent-intervenor the State of Alaska.
Before: ALEX KOZINSKI, Chief Judge, CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
OPINION
IKUTA, Circuit Judge:
In these expedited petitions for review, we consider the allegations of Native Village of Point Hope et al. and Inupiat Community of the Arctic Slope (collectively, "petitioners") that the Bureau of Ocean Energy Management (BOEM) failed to discharge its obligations under the Outer Continental Shelf Lands Act (OCSLA) in approving Shell Offshore Inc.'s plan for exploratory oil drilling in the Beaufort Sea. We have jurisdiction pursuant to 43 U.S.C. § 1349(c), and we deny the petitions.[1]
I
This case is the latest chapter in a long-running saga beginning back in April 2002, when the Minerals Management Service (MMS)[2] established a five-year lease sale schedule for the outer continental shelf of Alaska. Alaska Wilderness League v. Kempthorne, 548 F.3d 815, 817-18 (9th Cir.2008), vacated, 559 F.3d 916 (9th Cir. 2009), dismissed as moot sub nom., Alaska Wilderness League v. Salazar, 571 F.3d 859 (9th Cir.2009). Indeed, this is the third time the government has appeared before us to defend its approval of Shell's exploration plan against challenges by many of these same petitioners. We begin by describing the legal framework and factual background for these challenges.
A
In enacting the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a, Congress authorized the Secretary *1127 of the Interior to lease portions of the outer continental shelf to qualified bidders for the purpose of exploring and developing its oil and gas reserves. Under OCSLA, the Secretary begins by holding a lease sale to identify qualified bidders. Id. §§ 1337, 1344(a). Becoming the successful bidder in a lease-sale auction is merely the first step. Before undertaking exploration activities in the leased area, the winning bidder must obtain the Secretary's approval of an exploration plan, id. § 1340(c)(1), and obtain many other permits and approvals.[3] If, after completing such exploration activities, the leaseholder concludes there is potential for developing oil and gas reserves on the leased area, the leaseholder must obtain approval of a development and production plan, id. § 1351(a)(1), as well as obtaining a new round of permits and approvals before pursuing development of the leased area.
Only the exploration plan stage and the leaseholder's obligations under OCSLA are at issue here. In general, the applicable regulations require the leaseholder to submit specified information about its proposed exploration plan. 30 C.F.R. § 550.211-228. Within thirty days of the leaseholder's submission or last modification of the exploration plan, the Secretary "shall approve" the plan if it is consistent with OCSLA, its implementing regulations, and the applicable lease, 43 U.S.C. § 1340(c)(1), unless the Secretary determines that the proposed activity "would probably cause serious harm or damage to life . . ., to property, to any mineral . . ., to the national security or defense, or to the marine, coastal, or human environment," id. § 1334(a)(2)(A)(i), and that "such proposed activity cannot be modified to avoid such condition," id. § 1340(c)(1); see also 30 C.F.R. § 550.233.
While OCSLA focuses on development of the outer continental shelf, the Clean Water Act § 311, as amended by the Oil Pollution Act of 1990, focuses on the prevention of and response to oil spills. See 33 U.S.C. § 1321. Among other things, § 311 requires a leaseholder to submit an oil spill response plan, which is "a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance." Id. § 1321(j)(5)(A)(i). Offshore facilities "may not handle, store, or transport oil unless" the leaseholder's oil spill response plan "has been approved by the President" and the "facility is operating in compliance with the plan." Id. § 1321(j)(5)(F)(i)-(ii).
At the time Shell began its leasing and exploration efforts, MMS was in charge of conducting lease sales, reviewing exploration plans under OCSLA, and approving oil spill response plans under § 311 of the Clean Water Act. Following the Deepwater Horizon oil spill in the Gulf of Mexico in early 2010, the Secretary divided MMS's responsibilities among three new regulatory entities in order to separate the "three distinct and conflicting missions" of (1) promoting resource development, (2) enforcing safety regulations, and (3) maximizing revenues from offshore operations. Press Release, U.S. Dep't of the Interior, Salazar Divides MMS's Three Conflicting Missions (May 19, 2010), available at http://www.doi.gov/news/pressreleases/ Salazar-Divides-MMSs-Three-Conflicting-Missions.cfm; see also 76 Fed. Reg. 64,432; DOI Secretarial Order No. *1128 3299. In the reorganization, the Secretary made BOEM responsible for managing the development of offshore resources, including approving a leaseholder's exploration plan under OCSLA and conducting an environmental analysis of that plan under the National Environmental Policy Act (NEPA). See 76 Fed.Reg. at 64,432. The Secretary made the Bureau of Safety and Environmental Enforcement (BSEE) responsible for enforcement of safety and environmental functions, including the oil spill response plan requirements in 30 C.F.R. pt. 254. See 76 Fed.Reg. at 64,-448.[4] As the regulatory process now stands, BOEM and BSEE are independent entities with separate responsibilities.
B
Although a winning bidder in the Beaufort Sea lease sale in 2003, Shell has yet to commence exploration activities. In November 2006, Shell submitted an exploration plan for the Beaufort Sea region. Alaska Wilderness League, 548 F.3d at 818. MMS approved Shell's exploration plan in February 2007. Id. at 821. Some of the petitioners here, along with other groups, challenged MMS's approval, and a panel of this court issued a stay pending review, thereby preventing exploration in 2007 and 2008. See id. at 819-20. On November 20, 2008, the panel vacated and remanded MMS's approval. See id. at 835. After Shell filed a petition for rehearing en banc, we issued an order vacating and withdrawing the panel opinion. See Alaska Wilderness League, 559 F.3d at 916. Shortly thereafter, Shell withdrew its exploration plan, and in 2009 we granted Shell's motion to dismiss the petitions as moot. See Alaska Wilderness League, 571 F.3d at 859. In June 2009, Shell submitted a new exploration plan that proposed drilling at the Sivulliq and Torpedo prospects in the Beaufort Sea. MMS approved that plan, and in May 2010 we denied expedited petitions challenging that approval. See Native Vill. of Point Hope v. Salazar, 378 Fed.Appx. 747, 748 (9th Cir.2010) (mem.). Drilling did not commence, however, because soon after the approval the federal government suspended all drilling exploration activities in the Arctic in response to the Deepwater Horizon oil spill. U.S. Dep't of the Interior, Decision Memorandum Regarding the Suspension of Certain Offshore Permitting and Drilling Activities on the Outer Continental Shelf, July 12, 2010, at 1, available at http://www.doi.gov/deepwaterhorizon/ upload/Salazar-Bromwich-July-12-Final. pdf.
In May 2011, after the Secretary lifted the moratorium on drilling, Shell submitted a revised exploration plan to BOEM and a revised oil spill response plan to BSEE.[5] In the revised exploration plan, Shell proposed drilling two wells at its Sivulliq prospect and two wells at its Torpedo prospect in the Beaufort Sea during the July 10 to October 31 drilling season. On August 3, 2011, after conducting a NEPA review of the drilling activities contemplated in the revised exploration plan, BOEM issued a Finding of No Significant Impact. The agency concluded "that no *1129 substantial questions remain regarding potentially significant impacts and that no potentially significant impacts are expected to occur as a result of the proposed activities." Petitioners do not challenge these conclusions. On August 4, 2011, BOEM approved Shell's revised exploration plans subject to eleven conditions. Conditions 8 and 9 require Shell to make certain technical demonstrations concerning its oil spill response capabilities to BSEE before beginning exploratory drilling operations. BSEE approved Shell's revised oil spill response plan on March 28, 2012.[6]
In these expedited petitions, petitioners challenge BOEM's approval of Shell's revised exploration plan. Petitioners claim that BOEM erred in approving the plan for three reasons. First, they claim that Shell's revised exploration plan did not meet the informational standards set by OCSLA and the regulations, because (1) it failed to reference an approved oil spill response plan as required by 30 C.F.R. § 550.219(a) and (2) did not contain an adequate description of Shell's well-capping stack and containment system as required by 30 C.F.R. § 550.213(d).[7] Second, they claim that BOEM erred by failing to reconcile conflicting evidence regarding the feasibility of well-capping technology and the amount of time it takes to drill a relief well in the event of a well blowout and oil spill. Finally, they claim that BOEM erred by approving the revised exploration plan subject to conditions.
II
BOEM's decision "to approve, require modification of, or disapprove any exploration plan" is "subject to judicial review only in a United States court of appeals for a circuit in which an affected State is located." 43 U.S.C. § 1349(c)(2). The reviewing court "shall consider the matter under review solely on the record made before the Secretary," and BOEM's findings, "if supported by substantial evidence on the record considered as a whole, shall be conclusive." Id. § 1349(c)(6). In addition to the standard of review established by OCSLA, BOEM's approval of an exploration plan is a final agency action subject to review under § 706 of the Administrative Procedure Act (APA). Under this standard, we may set aside BOEM's approval only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious standard is deferential. We will not vacate an agency's decision unless it has "relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation [for that decision] that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotation marks omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1157 (9th Cir.2006), overruled on other grounds as recognized by Am. Trucking Ass'ns v. City of L.A., 559 F.3d 1046, 1052 *1130 (9th Cir.2009)). We have emphasized that deference to the agency's decisions "is especially warranted when `reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise.'" Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 707 (9th Cir. 2009) (quoting Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir.2003)).
While OCSLA gives appellate courts jurisdiction over challenges to BOEM's approval of an exploration plan, BSEE's decisions regarding oil spill prevention, response, and liability are committed to a separate review process in the district court. See 33 U.S.C. § 1321(n). We have interpreted § 1321(n) as a grant of exclusive original jurisdiction to the district court to review an oil spill response plan. Edwardsen v. U.S. Dep't of the Interior, 268 F.3d 781, 790-91 (9th Cir.2001) ("OCSLA regulations, the special review statute contained in OPA, and the overall regulatory regime created by OPA all make it clear that jurisdiction lies in the district court for actions challenging approval of a spill response plan or modifications to such a plan.").
III
We begin by considering petitioners' claim that BOEM erred in approving Shell's exploration plan because the plan did not include all the information required under OCSLA and the implementing regulations. Petitioners point to two alleged errors: first that the exploration plan did not meet the requirements for informing BOEM about its oil spill response plan, and second that the exploration plan's discussion of its proposed well-capping stack and containment system was incomplete. We discuss each issue in turn.
A
Petitioners first claim that BOEM's approval of Shell's exploration plan was arbitrary and capricious because the plan failed to comply with the regulatory requirement that an exploration plan include a "[r]eference" to an approved regional oil spill response plan, as well as "a comparison of the appropriate worst case discharge scenario in [the applicant's] approved regional [oil spill response plan] with the worst case discharge scenario that could result from [the applicant's] proposed exploration activities." 30 C.F.R. § 550.219(a)(2), (iv).[8]
*1131 In response to this requirement, Shell's exploration plan stated, "Shell's Beaufort Sea Regional Exploration [Spill Plan] was unconditionally approved on 11 March 2010 and is a fundamental component for the planned exploration drilling program. The latest revision . . . has been submitted to [BSEE] as a separate document." The exploration plan then compared the worst case scenario for its exploration activities to the worst case scenario in the revised oil spill response plan submitted to BSEE. While the exploration plan "reference[d]" the approved 2010 spill plan, it did not make worst case discharge comparisons based on that spill plan as required by 30 C.F.R. § 550.219(a)(2)(iv). Rather, the exploration plan's worst case discharge comparisons were based on the estimated discharge in the revised spill plan, which was still undergoing review.
Nevertheless, BSEE's approval of the revised spill response plan on March 28, 2012, renders petitioners' challenge to this inconsistency in the exploration plan moot. "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir.1988). We have held that challenges to prior biological opinions for river hydropower system operations became moot upon issuance of superseding biological opinions because we could no longer grant effective relief as to the now non-operative biological opinions. See Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir.1997); Idaho Dep't of Fish & Game v. Nat'l Marine Fisheries Serv., 56 F.3d 1071, 1074-75 (9th Cir.1995). We are faced with a similar situation: Shell's revised spill plan was approved in 2012, and therefore Shell's exploration plan now references and makes the required worst case discharge scenario comparison to an approved spill plan. The informational requirements of 30 C.F.R. § 550.219(a)(2) are satisfied, and there is no relief we can now provide petitioners to redress their concerns.
We also reject petitioners' argument (which is, in any event, waived because it was raised for the first time at oral argument) that Shell amended its oil spill response plan after submitting it to BSEE, and that therefore the spill plan approved by BSEE included different oil spill trajectories, equipment, fleet size, and techniques than did the spill plan discussed in the exploration plan. Given that petitioners conceded at oral argument that Shell's amendments to the approved 2012 spill plan did not change the worst case discharge numbers discussed in the exploration plan, these differences are not relevant, and therefore this argument also fails.
In light of BSEE's approval of Shell's revised plan in March 2012, we dismiss petitioners' claim as moot.
B
We next consider petitioners' assertion that BOEM erred in approving Shell's exploration plan because the plan included a well-capping stack and containment system as part of its proposed response to oil spills, but did not provide all the information required under the OCSLA regulations. Specifically, 30 C.F.R. § 550.213(d) requires an exploration plan to include "[a] description and discussion of any new or unusual technology (see definition under § 550.200) you will use to carry out your proposed exploration activities."[9] The regulations define "new or unusual technology" to include equipment or procedures *1132 that "[h]ave not been used previously or extensively in a BOEM OCS Region," "[h]ave not been used previously under the anticipated operating conditions," or "[h]ave operating characteristics that are outside the performance parameters established by this part." 30 C.F.R. § 550.200. Neither OCSLA nor its implementing regulations define the term "description and discussion" or explain the level of specificity necessary to satisfy the regulation's requirement to provide "general information," see id. § 550.213(d), thus leaving it to BOEM to determine whether the information provided is sufficient. See 43 U.S.C. § 1340(c)(1); Lands Council, 537 F.3d at 1000.
We agree that the well-capping stack and containment system described in Shell's exploration plan meets the definition of new and unusual technology because the system has never been used in BOEM's Alaska region or in Arctic drilling conditions. See 30 C.F.R. § 550.200. Nevertheless, we reject petitioners' argument that BOEM was arbitrary and capricious in approving the plan, because BOEM could reasonably conclude that the exploration plan provided an adequate description and discussion of the technology. The exploration plan's seven-paragraph explanation of the well-capping stack and containment system included a description of the design (blowout preventer equipped with spacer spools and rams for pumping kill weight fluid into the well, with all equipment designed for conditions found in the Arctic), proposed location (warmstored aboard a designated vessel in Alaska), and planned implementation of the technology. Given the deference we owe BOEM's interpretation of its own regulations, we cannot say that BOEM acted arbitrarily or capriciously in concluding that this description and discussion satisfied the informational requirements of 30 C.F.R. § 550.213(d). See Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (an agency's interpretation of its own regulations is "controlling unless `plainly erroneous or inconsistent with the regulation'" (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989))).[10]
IV
We next turn to petitioners' argument that BOEM erred in approving the exploration plan because the agency did not explain how it reconciled inconsistencies in Shell's 2011 plan regarding the feasibility of the proposed well-capping stack and containment system and the time for drilling a relief well.
*1133 A
Petitioners first argue that BOEM erred in not explaining how it reconciled Shell's statements in its pre-2011 oil spill response plans that "proven technology is not available" for well capping and "well capping would not be an effective option for regaining well control while operating from a moored vessel," with its statement in the 2011 exploration plan that "subsea capping equipment and containment capabilities. . . would be implemented if all other kick control methods fail." We disagree.
First, there is no statutory or regulatory requirement that BOEM include a statement identifying and reconciling inconsistent positions taken by a permit applicant. Nor does BOEM's failure to do so make its approval of the exploration plan arbitrary and capricious under the APA. While an agency must present an adequate explanation for a decision that contradicts the agency's previous decision, see, e.g., Humane Soc'y v. Locke, 626 F.3d 1040, 1058 (9th Cir.2010), BOEM did not adopt Shell's past statements, and therefore the agency is not taking an inconsistent position. Rather, it is Shell, not BOEM, that reassessed the feasibility of a well-capping stack and containment system in light of new information, namely that "[w]ell capping techniques have improved, especially since [their] frequent application during the Iraq-Kuwait conflict in the early 1990s, and the recent Macondo [Deepwater Horizon oil spill] incident." Because OCSLA requires industries to adopt the best available and safest technology, 30 C.F.R. § 250.107(c); H.R.Rep. No. 95-590, at 97 (1977), reprinted in 1978 U.S.C.C.A.N. 1450, 1503-04, which would include technological advances, Shell's reassessment is consistent with the regulatory scheme.
More important, BOEM's failure to expressly address Shell's changed position on well-capping technology does not cast doubt on BOEM's decision that the activities in the exploration plan will not "probably cause serious harm or damage to life (including fish and other aquatic life), to property, . . . or to the marine, coastal, or human environment." See 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30 C.F.R. §§ 550.202, 550.233. First, the well-capping stack and containment system challenged by petitioners is not the sole means identified in the exploration plan for responding to a well blowout and oil spill. Rather, Shell has several response tools at its disposal, including surface control options and relief well capabilities. As BOEM reasonably concluded, "Shell's proposed subsurface collection system will be an added tool for responding to a potential well control incident where fluids flow and will increase response preparedness, but is not necessary or required to comply with" the regulations. Second, BOEM's conclusion that well-capping technology is now feasible in the Arctic is supported by substantial evidence in the record. See 43 U.S.C. § 1349(c)(6). BOEM found that "[s]ubsea containment technology has been successfully used in the past," including by Shell at the NaKika and Mars sites and by British Petroleum during the Deepwater Horizon spill, and that "most major components for such a system are available and have been field tested." Whether well-capping technology is now feasible in the Arctic is a technical issue that lies squarely within the agency's scientific expertise and, therefore, is accorded great deference by a reviewing court. See Ctr. for Biological Diversity, 588 F.3d at 707; see also Lands Council, 537 F.3d at 993 ("[Courts] are not free to impose on the agency [their] own notion of which procedures are best or most likely to further some vague, undefined public good. Nor may [courts] impose procedural requirements not explicitly enumerated *1134 in the pertinent statutes." (internal citations, alterations, and quotation marks omitted)). Accordingly, we conclude that the inconsistency in Shell's prior statements does not invalidate BOEM's approval of Shell's current exploration plan.
B
We apply similar reasoning to petitioners' contention that BOEM acted arbitrarily and capriciously when it approved the exploration plan without reconciling evidence in the record that runs contrary to Shell's estimate of the time necessary to drill a relief well. Petitioners argue that Shell's estimate for the time it will take to drill the planned production wells is far longer than its estimate for the time it will take to drill an emergency relief well, and they further argue that Shell "failed to provide the agency any rational explanation for why it expects to drill a relief well so much faster."[11]
We reject petitioners' contention that BOEM acted arbitrarily by failing to state on the record how it reconciled these different estimates. As noted above, there is no requirement that BOEM do so. Moreover, BOEM's decision to rely on Shell's time estimate for drilling relief wells was "supported by substantial evidence on the record considered as a whole" and is therefore "conclusive." 43 U.S.C. § 1349(c)(6). The well control plan submitted as a part of Shell's exploration plan explained that it would take a shorter time to drill relief wells than to drill exploratory wells because "[r]elief well drilling is rapid," relief wells "intercept a deep blowout at some point above the total vertical depth," which saves time, and in an emergency situation "all available resources are quickly accessed and funneled into drilling the relief well and killing the blowout as quickly as possible." BOEM's conclusion that Shell provided a realistic estimate of the time it would take to drill a relief well is a technical issue that lies squarely within the agency's scientific expertise and is therefore entitled to "great deference." Ctr. for Biological Diversity, 588 F.3d at 712.
V
Finally, we consider petitioners' argument that BOEM acted arbitrarily by approving Shell's exploration plan on the condition that Shell provide additional information about the "procedures for deployment, installation[,] and operation of the system under anticipated environmental conditions." This argument likewise fails. As noted above, BOEM must approve an exploration plan that is consistent with OCSLA and its implementing regulations unless the proposed activity will "probably cause serious harm or damage to life (including fish and other aquatic life), to property, . . . or to the marine, coastal, or human environment." 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30 C.F.R. § 550.233. BOEM takes the position that after approving a plan, it may still "require [the applicant] to meet certain conditions, including those to provide monitoring information." 30 C.F.R. § 550.233(b)(1).[12] According to BOEM, its *1135 approval here followed this path: BOEM concluded that Shell's exploration plan complied with applicable requirements and would not cause serious harm or damage to the environment, but nevertheless required Shell to provide further documentation of its well-capping stack and containment system, as well as to meet certain additional conditions. This interpretation by BOEM of its own regulations is controlling unless plainly erroneous or inconsistent with the regulation. Auer, 519 U.S. at 461, 117 S.Ct. 905. Further, the conditions at issue here, which require Shell to seek additional authorizations before commencing drilling, are consistent with the statutory scheme's requirement that a leaseholder with an approved exploration plan obtain a permit to drill and other approvals that "conform to the activities described in detail in [the] approved [exploration plan]" before conducting exploration activities. 30 C.F.R. § 550.281; see also 43 U.S.C. § 1340(d). For these reasons, petitioners' argument that BOEM impermissibly conditioned its approval is without merit.
VI
The Secretary's recent division of MMS's responsibilities between BSEE and BOEM makes it clear that BOEM's duty here is limited. Within the thirty days provided by statute, BOEM had to determine whether Shell's exploration plan complied with OCSLA's requirements and would not "probably cause serious harm or damage" to life, property or the human, marine, or coastal environment. 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30 C.F.R. §§ 550.202, 550.233. Here, BOEM's decision that Shell's exploration plan complied with OCSLA's requirements is entitled to deference and is supported by the record as a whole. We deny the expedited petitions.[13]
DENIED.
NOTES
[1] In a separate memorandum disposition filed concurrently with this opinion, we deny expedited petitions challenging BOEM's decision to approve an exploration plan for Shell Gulf of Mexico Inc. to drill for oil in the Arctic Ocean's Chukchi Sea. Because of the expedited nature of this case, no motions to stay the mandate will be granted. Petitions for rehearing and rehearing en banc may be filed with respect to this opinion.
[2] In May 2010, the Secretary of the Interior separated and reassigned the responsibilities of the former Minerals Management Service (MMS) to three separate divisions: the Bureau of Ocean Energy Management (BOEM), the Bureau of Safety and Environmental Enforcement (BSEE), and the Office of Natural Resources Revenue. DOI Secretarial Order No. 3299, sec. 8 (May 19, 2010). While the formal reorganization was underway, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), rather than MMS, functioned as the umbrella organization for the now-separated divisions. DOI Secretarial Order No. 3302 (June 18, 2010) (changing the name of MMS to BOEMRE). Although the Secretary's reorganization plan was not fully implemented until October 2011, see 76 Fed.Reg. 64,432 (Oct. 18, 2011), after the date of approval of Shell's exploration plan at issue here, we follow the parties' lead by referring to the regulatory divisions within BOEMRE as BOEM and BSEE throughout this opinion.
[3] The required permits include inter alia an approval of an oil spill response plan under the Clean Water Act, 33 U.S.C. § 1321, a National Pollutant Discharge and Elimination System (NPDES) permit under the Clean Water Act, id. § 1342, a dredge-and-fill permit under the Clean Water Act, id. § 1344, an air quality permit under the Clean Air Act, 42 U.S.C. § 7661a, a permit to drill, 43 U.S.C. § 1340, 30 C.F.R. § 250.1617, and a range of state approvals.
[4] The Office of Natural Resource Revenue was made responsible for revenue collection.
[5] Among other things, Shell's revisions responded to two Notices to Lessees issued by the Secretary of the Interior in 2010 after the Deepwater Horizon incident. One notice required leaseholders to include additional information in the worst case discharge scenarios of their exploration plans and development plans, see NTL No. 2010-N06 (June 18, 2010). The other informed leaseholders that BSEE would evaluate "whether each operator has submitted adequate information demonstrating that it has access to and can deploy containment resources that would be adequate to promptly respond to a blowout or other loss of well control," see NTL No. 2010-N10 (Nov. 8, 2010).
[6] We take judicial notice of this approval. See Interstate Nat'l Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir.1953). We also grant the parties' motions for judicial notice of briefs filed in Native Village of Point Hope, 378 Fed.Appx. at 747.
[7] Shell's proposed well-capping stack and containment system involves "subsea devices used on the top of the well" that will either seal the well or divert the flow from the well to a surface vessel with a containment system equipped for separation and disposal of hydrocarbons.
[8] Section 550.219 provides:
The following information regarding potential spills of oil (see definition under 30 CFR 254.6) and hazardous substances (see definition under 40 CFR part 116) as applicable, must accompany your EP:
(a) Oil spill response planning. The material required under paragraph (a)(1) or (a)(2) of this section:
(1) An Oil Spill Response Plan (OSRP) for the facilities you will use to conduct your exploration activities prepared according to the requirements of 30 CFR part 254, subpart B; or
(2) Reference to your approved regional OSRP (see 30 CFR 254.3) to include:
(i) A discussion of your regional OSRP;
(ii) The location of your primary oil spill equipment base and staging area;
(iii) The name(s) of your oil spill removal organization(s) for both equipment and personnel;
(iv) The calculated volume of your worst case discharge scenario (see 30 CFR 254.26(a)), and a comparison of the appropriate worst case discharge scenario in your approved regional OSRP with the worst case discharge scenario that could result from your proposed exploration activities; and
(v) A description of the worst case discharge scenario that could result from your proposed exploration activities (see 30 CFR 254.26(b), (c), (d), and (e)).
Shell did not attach a copy of a facility-specific oil spill response plan to its exploration plan under 30 C.F.R. § 550.219(a)(1). It therefore must satisfy the alternate requirements of § 550.219(a)(2).
[9] Section 550.213(d) provides:
The following general information must accompany your EP: . . .
(d) New or unusual technology. A description and discussion of any new or unusual technology (see definition under § 550.200) you will use to carry out your proposed exploration activities. In the public information copies of your EP, you may exclude any proprietary information from this description. In that case, include a brief discussion of the general subject matter of the omitted information. If you will not use any new or unusual technology to carry out your proposed exploration activities, include a statement so indicating.
[10] To the extent petitioners are making the more substantive argument that BOEM erred by failing to analyze the technical feasibility of the well-capping stack and containment system, their argument fails. BOEM's review does not extend to such issues, which are considered by BSEE when reviewing and approving Shell's oil spill response plan, see 30 C.F.R. part 254, and application for permit to drill, id. § 250.417. See Edwardsen, 268 F.3d at 790 (declining to review the substantive adequacy of an oil spill response plan because jurisdiction for such review resides in the district court in the first instance). For the same reason, we reject petitioners' contention that BOEM's approval of the exploration plan contravenes 30 C.F.R. § 250.107(c), which requires use of the best available and safest technology (BAST). BSEE, not BOEM, is tasked with ensuring BAST compliance, and we lack jurisdiction to review BSEE's technical analyses. See 76 Fed.Reg. at 64,435 (stating that 30 C.F.R. § 250.107 "establishes the expectations for operators to protect health, safety, and the environment, [and] these responsibilities fall under the authority of BSEE").
[11] Specifically, Shell estimated that it would take 44 days to drill the planned wells at its Torpedo prospect but only 25 days to drill an emergency well at the Torpedo site, and that it would take 34 days to drill the planned wells at its Sivulliq prospect, but only 20 days to drill a relief well at the site.
[12] Section 550.233(b)(1) provides that within thirty days of the exploration plan's submission or last modification,
the Regional Supervisor will take one of the following actions:
The regional supervisor will (1) approve your EP, [i]f [i]t complies with all the applicable requirements, [a]nd then [t]he Regional Supervisor will notify you in writing of the decision and may require you to meet certain conditions, including those to provide monitoring information.
(ellipses omitted).
[13] Because we deny the expedited petitions, we do not reach petitioner's argument regarding whether a proper remedy for a deficiency is vacatur or remand.
| {
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-133-CR
2-07-134-CR
BOBBY E. HEARN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
In two points, Appellant Bobby E. Hearn argues that former article 42.12,
section 5(b) of the Texas Code of Criminal Procedure and the limited application
of the amended statute are unconstitutional in that they violate the Equal
Protection and Due Process Clauses of the United States and Texas
1
… See T EX. R. A PP. P. 47.4.
Constitutions, and that the trial court abused its discretion by proceeding to
adjudicate his guilt and revoking his community supervision. We will affirm.
II. B ACKGROUND
On March 24, 2005, a grand jury indicted Hearn for the offense of theft
of property of $1,500 or more but less than $20,000. On April 28, 2005, a
grand jury indicted Hearn for the offense of selling securities without being a
registered dealer. On April 3, 2006, Hearn entered into two separate plea
agreements with the State for both offenses. The trial court accepted Hearn’s
guilty plea on the theft offense, placed him on five years’ deferred adjudication
community supervision, and ordered him to pay a $1,000 fine. The trial court
also accepted Hearn’s guilty plea on the securities offense, sentenced him to
five years’ confinement, and ordered him to pay a $2,000 fine. The trial court
suspended the five-year sentence and placed Hearn on ten years’ community
supervision.
On January 10, 2007, the State filed a petition to proceed to adjudication
and a petition to revoke Hearn’s probated sentence. The State alleged almost
identical violations 2 in each petition: (1) failure to report for a scheduled
conference with the trial court; (2) failure to remain in Tarrant County without
2
… The allegations in each petition are the same except for the amounts
of the fines set forth in the fourth allegation regarding the failure to pay fines.
2
authorization by the trial court or supervision officer; (3) failure to notify the
supervision officer within five days of a change of address; (4) failure to pay
fines; and (5) possession or ownership of a weapon.
At the revocation hearing for both offenses, Hearn pled true to every
allegation in the petitions. The trial court, based on Hearn’s pleas of true, found
that he had committed each violation, adjudicated him guilty of the theft
offense, and sentenced him to one year’s confinement in state jail. The trial
court also revoked Hearn’s community supervision on the securities offense and
sentenced him to three years’ confinement in the Institutional Division of the
Texas Department of Criminal Justice. The court ordered the sentences to run
concurrently.
III. A RTICLE 42.12, S ECTION 5(b)
Hearn’s appeal regarding the trial court’s determination to adjudicate his
guilt is governed by former article 42.12, section 5(b) of the Texas Code of
Criminal Procedure because his revocation hearing occurred on April 4, 2007.
Former article 42.12, section 5(b) gave defendants no right to appeal the trial
court’s determination to proceed to an adjudication of guilt and applies to all
revocation hearings that occurred before June 15, 2007. See Act of May 28,
1995, 74th Leg., R.S., ch. 318, § 53, 1995 Tex. Gen. Laws 2734, 2750,
amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex.
3
Gen. Laws 4395, 4397 (current version at T EX. C ODE C RIM. P ROC. A NN. art.
42.12, § 5(b) (Vernon Supp. 2007)). Effective June 15, 2007, the legislature
amended article 42.12, section 5(b) so that a trial court’s determination to
proceed to adjudication is reviewable in the same manner as a revocation
hearing in which an adjudication of guilt had not been deferred. See id.
In his first point, Hearn argues that former article 42.12, section 5(b) is
unconstitutional in that it denies a defendant the right to a nonarbitrary decision
by a neutral and impartial court, in violation of the Equal Protection and Due
Process Clauses of the United States and Texas Constitutions. Hearn also
contends that the limitation of the changes in the amended statute to cases
where the revocation hearing occurred on or after June 15, 2007, is
unconstitutional under the same grounds.
This court has previously rejected the argument that former article 42.12,
section 5(b) is unconstitutional on equal protection or due process grounds, and
we decline to reconsider our previous decisions. See Whitney v. State, 190
S.W.3d 786, 787 (Tex. App.—Fort Worth 2006, no pet.); Trevino v. State, 164
S.W.3d 464, 464 (Tex. App.—Fort Worth 2005, no pet.); see also Herfkens v.
State, No. 02-06-00396-CR, 2007 WL 2963707, at *1 (Tex. App.—Fort Worth
Oct. 11, 2007, pet. ref’d) (mem. op.) (not designated for publication); Maloney
4
v. State, No. 02-06-00001-CR, 2006 WL 2986608, at *1 (Tex. App.—Fort
Worth Oct 19, 2006, pet ref’d) (mem. op.) (not designated for publication).
Hearn has failed to differentiate his due process and equal protection
claims regarding the limited application of the amended statute from the due
process and equal protection claims he made about former article 42.12,
section 5(b) that we have already rejected. Hearn asserts only that for the
“reasons set out above,” referencing his argument regarding former article
42.12, section 5(b), the limited application of the amended statute is also
unconstitutional. To that extent, we rely on our previous decisions as set forth
above and dismiss Hearn’s first point.3 See Whitney, 190 S.W.3d at 787.
IV. A DJUDICATION OF G UILT AND R EVOCATION OF C OMMUNITY S UPERVISION
In his second point, Hearn complains that the trial court abused its
discretion by proceeding to adjudicate his guilt on the theft offense and by
revoking his community supervision on the securities offense. Because we are
3
… Although Hearn has failed to make a specific argument that the
amended statute should apply to him, we note that our sister court has recently
addressed this issue in Lamey v. State, No. 10-07-00149-CR, 2008 WL
191333 (Tex. App.—Waco Jan. 23, 2008, pet. filed) (mem. op.) (not
designated for publication). After dismissing the appellant’s point regarding
whether to apply the amended statute, the court stated in a footnote that
defendants that were “similarly situated”—i.e., had revocation hearings before
June 15, 2007—were treated the same. See Lamey, 2008 WL 191333, at *1
n.1 (citing Sonnier v. State, 913 S.W.2d 511, 520–21 (Tex. Crim. App.
1995)).
5
precluded by former article 42.12, section 5(b) from reviewing a trial court’s
determination to proceed to adjudication, we will dismiss his claim to that
extent and address only Hearn’s claim regarding the trial court’s revocation of
his community supervision on the securities offense. See Davis v. State, 195
S.W.3d 708, 710 (Tex. Crim. App. 2006) (holding that courts of appeal do not
have jurisdiction to consider claims relating to the trial court’s determination to
proceed with an adjudication of guilt on the original charge).
Hearn argues that the trial court’s revocation of his community
supervision “was not justified by the evidence.” However, Hearn pled true to
every allegation in the State’s petition to revoke the probated sentence, which
is sufficient to support the trial court’s revocation of community supervision.
See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979)
(“Appellant’s plea of true, standing alone is sufficient to support the revocation
of [community supervision].“); Harrison v. State, No. 2-02-00322-CR, 2003 WL
21283904, at *1 (Tex. App.—Fort Worth June 5, 2003, pet. ref’d) (mem. op.)
(not designated for publication) (same). Hearn contends that his wife’s
testimony at the hearing raised sufficient defensive issues to render the trial
court’s revocation an abuse of discretion. We disagree. Even though Hearn
raised defensive issues on each violation at the hearing, the trial court was not
required to withdraw Hearn’s pleas of true under these circumstances. See
6
Moses, 590 S.W.2d at 470; Harrison, 2003 WL 21283904, at *1.
Accordingly, the trial court did not abuse its discretion by revoking Hearn’s
community supervision, and we overrule Hearn’s second point.4
V. C ONCLUSION
Having dismissed Hearn’s first point and second point in part and having
overruled Hearn’s second point regarding revocation of community supervision,
we affirm the trial court’s judgment.
PER CURIAM
PANEL F: HOLMAN, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: April 24, 2008
4
… Hearn also argues that the condition of his community supervision
prohibiting him from possessing any firearm or weapon is too vague and
ambiguous in that it does not give fair notice of what constitutes a violation of
the condition. This challenge should have been raised by a timely appeal after
Hearn was placed on community supervision. See T EX. C ODE C RIM. P ROC. A NN.
art. 42.12, § 23(b) (Vernon Supp. 2007); In re V.A., 140 S.W.3d 858, 860
(Tex. App.—Fort Worth 2004, no pet.); Anthony v. State, 962 S.W.2d 242,
246 (Tex. App.—Fort Worth 1998, no pet.) (op. on PDR). We lack jurisdiction
to address that point now.
7
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449 So.2d 891 (1984)
Hancel Drew PLATT, Appellant,
v.
STATE of Florida, Appellee.
No. 83-1519.
District Court of Appeal of Florida, Second District.
April 11, 1984.
*892 Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
RYDER, Judge.
Hancel Drew Platt was convicted by a jury of DWI manslaughter and vehicular homicide. The trial court adjudged Platt guilty of both crimes, but only pronounced sentence for the conviction of DWI manslaughter. Platt asserts error in the trial court's denial of his motions for judgment of acquittal for each of these two crimes and in the trial court's adjudging Platt guilty of both crimes. We affirm in part, reverse in part, and remand this case to the trial court.
The motion for judgment of acquittal on the charge of DWI manslaughter was properly denied by the trial court. The evidence was sufficient to allow the jury to consider and decide this charge. Tsavaris v. State, 414 So.2d 1087 (Fla. 2d DCA 1982), petition for review denied, 424 So.2d 763 (Fla. 1983). See also Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983). Moreover, the evidence supports Platt's conviction for DWI manslaughter. We affirm that conviction and the sentence imposed thereon.
We do not reach the question of whether the trial court properly denied the motion for judgment of acquittal on the charge of vehicular homicide. The issue is moot as we hold that the trial court erred by adjudging Platt guilty of vehicular homicide.
One person, Terry D. Collins, died as a result of injuries received in the automobile collision involving the vehicles driven by Platt and Collins. Platt caused a single death and could not be convicted of both DWI manslaughter and vehicular homicide. Ubelis v. State, 384 So.2d 1294 (Fla. 2d DCA 1980). Therefore, we reverse the judgment of guilt of vehicular homicide. This case is remanded to the trial court with instructions to set aside the judgment of guilt on vehicular homicide.
The conviction of DWI manslaughter is AFFIRMED, the conviction of vehicular homicide is REVERSED, and this case is REMANDED with instructions.
OTT, C.J., and BOARDMAN, J., concur.
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156 F.3d 186
Smithv.Bureau of Prisons*
NO. 97-6663
United States Court of Appeals,Eleventh Circuit.
August 5, 1998
Appeal From: N.D.Ala. ,No.9600384CVARE
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0421-14
LEO DEMORY ROBINSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
K ELLER, P.J., filed a concurring opinion in which H ERVEY, Y EARY and
N EWELL, JJ., joined.
I join the Court’s opinion, but I write separately to comment on appellant’s claim that the
authorities rebuffed his attempts to register and to respond to Judge Alcala’s concerns relating to that
claim. If authorities rebuff a sex-offender’s repeated attempts to register, the sex offender may be
able to claim an exemption from or defense to criminal liability on the basis that his failure to act
was involuntary. The Penal Code provides that an omission that gives rise to criminal liability must
ROBINSON CONCURRENCE — 2
be voluntary.1 Due process may also require that the authorities not place significant hurdles to
complying with a duty to register beyond those contemplated by the statute.2
Judge Alcala believes that applying a culpable mental state to a sex-offender’s omissions
would somehow eliminate the possibility of individuals being punished for omissions that are truly
involuntary, but it would not. “A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of
his conduct or that the circumstances exist.”3 Even if a failure to comply with the registration statute
is involuntary, the sex-offender who is rebuffed by public officials still knows that he is in fact
failing to comply. The solution is not to impose a culpable mental state where it does not belong,
but to recognize, in an appropriate case, that the involuntary-omission requirement and due process
are the mechanisms to address any stonewalling by public officials that prevents a sex-offender from
1
TEX . PENAL CODE § 6.01(a) (“A person commits an offense only if he voluntarily engages
in conduct, including an act, an omission, or possession.”). See also Ramirez-Memije v. State, 444
S.W.3d 624, 627-28 (Tex. Crim. App. 2014). I need not address what would make an omission
involuntary, but I note that, in the “act” and “possession” contexts, voluntariness is a very minimal
requirement. See Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App. 2013) (voluntary act of
swallowing pill though mistaken about what pill was being swallowed); Ramirez-Memije, 444
S.W.3d at 627-28 (voluntary possession of skimming device without knowing its contents).
2
See Harrah I.S.D. v. Martin, 440 U.S. 194, 198 (1979) (school district did not act
arbitrarily when it gave teachers affected by change in rule the opportunity to bring themselves into
compliance); Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 263 (Alaska 2000) (junkyard
operator “did not receive all the process to which she was due” when she was given no opportunity
to remedy deficiencies in noncompliance after rezoning and after the overturning of zoning
administrator’s ruling in her favor). Due process may also be violated if a statute makes it nearly
impossible to comply with its provisions, but such is not the case with the Texas sex-offender
registration scheme.
3
TEX . PENAL CODE § 6.03(b).
ROBINSON CONCURRENCE — 3
complying with registration requirements.
Filed: July 1, 2015
Publish
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871 So.2d 820 (2003)
Ex parte Robert WEAVER and Frances Weaver.
(In re Robert Weaver and Frances Weaver v. Kimberly-Clark Corporation).
1010582.
Supreme Court of Alabama.
June 27, 2003.
*822 Bruce J. McKee and Nolan E. Awbrey of Hare, Wynn, Newell & Newton, Birmingham, for petitioners.
H.L. Ferguson, Jr., and Stacy L. Moon of Ferguson, Frost & Dodson, Birmingham, for respondent.
JOHNSTONE, Justice.
The petitioners now before us, Robert Weaver and Frances Weaver, sued Robert's former employer Kimberly-Clark Corporation and other defendants for negligently or wantonly installing, maintaining, or repairing a catwalk and its handrail in a pulp and paper mill while Kimberly-Clark owned the mill and employed Robert and, by such negligence or wantonness, causing Robert's injury, which occurred after Robert's employment with Kimberly-Clark had terminated and after Kimberly-Clark's ownership of the mill, the site of the injury, had terminated. Robert was injured in a fall caused by the failure of the handrail, which "gave way."
Kimberly-Clark moved for a summary judgment on the ground that the exclusivity provisions of the Workers' Compensation Act, § 25-5-52 and § 25-5-53, Ala. Code 1975, barred the Weavers from suing Kimberly-Clark. After a hearing, the trial court entered summary judgment in favor of Kimberly-Clark but stayed entry of the judgment for 60 days to allow the Weavers to present evidence and to show cause why the judgment should not become final. The Weavers filed a memorandum of law in opposition to the summary judgment motion. While, in replying to the Weavers' opposition memorandum, Kimberly-Clark contended that the memorandum was untimely and insufficient, Kimberly-Clark did not move to strike it. After considering the Weavers' opposition memorandum, the trial court "vacate[d] the finality of the judgment" and scheduled a hearing on the summary judgment motion. After the hearing, the trial court made its order granting summary judgment in favor of Kimberly-Clark final and appealable pursuant to Rule 54(b), Ala. R. Civ. P.
The Court of Civil Appeals affirmed the judgment of the trial court. Weaver v. Kimberly-Clark Corp., 871 So.2d 814 (Ala. Civ.App.2001). Relying on Fields v. Jantec, 317 Or. 432, 857 P.2d 95 (1993), the Court of Civil Appeals held that Kimberly-Clark was entitled to invoke the exclusivity provisions of the Alabama Workers' Compensation Act, § 25-5-52 and § 25-5-53, Ala.Code 1975, because Kimberly-Clark *823 was Robert's employer at the time of the alleged negligence or wantonness although not at the time of Robert's injury.
The Weavers have petitioned us for a writ of certiorari, which we have granted, to review the judgment of the Court of Civil Appeals. The Weavers present a question of first impression: whether "a former employer of an injured former employee can avail itself of [the] Workers' Compensation [Act] exclusivity immunity when an employee-employer relationship existed at the time of the defendant/former employer's negligent act, but not at the time of the injury to the plaintiff/former employee." (Weavers' brief, p. 1.)
The first argument to us by Kimberly-Clark is that a procedural default by the Weavers before the trial court justifies its entry of summary judgment. Kimberly-Clark argues that the Weavers did not oppose the motion for summary judgment with factual evidence as ordered by the trial court but opposed the motion for summary judgment only with authorities and argument on the law. Kimberly-Clark further argues that this Court, therefore, should strike the opposition the Weavers filed before the trial court.
This argument by Kimberly-Clark fails for two reasons. First, because a moving party's entitlement to summary judgment depends not only on the absence of a genuine issue of material fact but also on the propriety of judgment as a matter of law, Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999), the Weavers were entitled to rely on the impropriety of summary judgment as a matter of law. Second, Kimberly-Clark failed to move to strike the Weavers' opposition before the trial court. "Our review is limited to the issues that were before the trial courtan issue raised on appeal must have first been presented to and ruled on by the trial court." Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992). Therefore, this Court will proceed to analyze the issue of first impression presented by this petition for the writ of certiorari.
"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil appeals." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996).
"Summary judgment is appropriate only when `there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Economic & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra."
Ex parte Kraatz, 775 So.2d 801, 803 (Ala. 2000).
"The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala. 1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language *824 to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992)."
Ex parte State Dep't of Revenue, 683 So.2d 980, 983 (Ala.1996). "Sections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each." Locke v. Wheat, 350 So.2d 451, 453 (Ala. 1977) (citations omitted). "Courts must liberally construe the workers' compensation law `to effectuate its beneficent purposes,' although such a construction must be one that the language of the statute `fairly and reasonably' supports." Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997) (quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala. 1985)). Accord Ex parte Taylor, 728 So.2d 635, 637 (Ala.1998), and Yates v. United States Fid. & Guar. Ins. Co., 670 So.2d 908, 909 (Ala.1995).
The exclusivity provisions of the Workers' Compensation Act, § 25-5-52 and § 25-5-53, provide, in pertinent part, respectively:
"Except as provided in this chapter, no employee of any employer subject to this chapter, nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof."
§ 25-5-52 (emphasis added).
"The rights and remedies granted in this chapter to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer's employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer; the cause of which accident or occupational disease originates in the employment. ..."
§ 25-5-53 (emphasis added).
Section 25-5-1(4) defines an "employer," in pertinent part, as "[e]very person who employs another to perform a service for hire and pays wages directly to the person." Section 25-5-1(5) defines an "employee," in pertinent part, as "every person in the service of another under any contract of hire, express or implied, oral or written, including aliens and also including minors who are legally permitted to work under the laws of this state." Section 25-5-11(a) permits an employee to sue a third party for injuries sustained by the employee in his or her employment:
"(a) If the injury or death for which compensation is payable under Articles 3 or 4 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not the party is subject to this chapter, the employee, or his or her dependents in case of death, may proceed against the employer to recover compensation under this chapter or may agree with the employer upon the compensation payable under this chapter, and at the same time, may bring an action against the other party to recover damages for the injury or death, and the amount of the damages shall be ascertained *825 and determined without regard to this chapter." (Emphasis added.)
"Our Work[ers'] Compensation Laws were adopted from those of Minnesota and the Minnesota construction of their laws is of persuasive value to this court." Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 125, 266 So.2d 276, 281 (1972). In dissenting from the main opinion in Weaver v. Kimberly-Clark Corp., supra, Judge Crawley succinctly stated the rationale and the holding of the Minnesota Court of Appeals in Konken v. Oakland Farmers' Elevator Co., 425 N.W.2d 302 (Minn.Ct.App.1988):
"[T]he Minnesota court concluded that a former employer is not an `employer' because the definition of `employer' (`any person who employs another to perform a service for hire') is cast in the present tense, and a former employer is, therefore, a `person other than the employer' against whom a third-party action can be maintained. [Konken v. Oakland Farmers' Elevator Co.,] 425 N.W.2d [302] at 305 [(Minn.Ct.App.1998)]. The Alabama definition of `employer' is, like the Minnesota definition, also cast in the present tense. See § 25-1-20(2), Ala.Code 1975 (defining `employer' as `any person employing 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including any agent of that person'). The Alabama Workers' Compensation Act, like the Minnesota Act, also contains exclusivity provisions limiting a worker's remedies as against his employer, see §§ 25-5-52 and 25-5-53, Ala.Code 1975, but not as against third parties, or `part[ies] other than the employer,' see § 25-5-11(a), Ala.Code 1975.
"In Konken, the Minnesota court, quoting the New York Supreme Court, Appellate Division, stated:
"`In this common law action brought for injuries sustained [after the sale of assets], [the former employer] and its related business entities stand as third parties rather than as employers in relation to plaintiff and thus cannot use the fortuity of a prior employment relationship as a basis for invoking the [exclusive-remedy provision].'
"Konken, 425 N.W.2d at 305-06 (quoting Hull [v. Aurora Corp. of Illinois ], 89 A.D.2d [681,] at 682, [454 N.Y.S.2d 39,] at 40 [(1982)])."
871 So.2d at 820 (emphasis added). See also Duvon v. Rockwell Int'l, Inc. 116 Wash.2d 749, 807 P.2d 876 (1991).
In Fields v. Jantec, Inc., 317 Or. 432, 857 P.2d 95 (1993), the Oregon Supreme Court adopted a contrary and minority view that a former employer who had complied with its statutory duty of maintaining workers' compensation insurance, whether self-insurance or carrier-provided-insurance, O.R.S. § 656.017 (1993), "has fulfilled its part of the bargain" of its contractual relationship with a formerly covered employee. 317 Or. at 442, 857 P.2d at 100. Because the Oregon Legislature had adopted "`a form of strict liability requiring employers, regardless of fault, to compensate employees for injuries arising out of and in the course of employment ... [and requiring] employees ... [to] abandon any common law right of action against their employers,'" the Oregon Supreme Court concluded that a former employer who had been a "complying employer" should be protected from common-law actions for alleged negligence that had occurred during the former employment. Fields, 317 Or. at 441, 857 P.2d at 99 *826 (quoting McGarrah v. SAIF, 296 Or. 145, 160-61, 675 P.2d 159 (1983)).
After the Court of Civil Appeals released its opinion in the case before us, the Illinois Court of Appeals addressed the issue of whether a former employer of a subsequently injured former employee is entitled to the exclusivity immunity of the Illinois Workers' Compensation Act. Hunter v. Southworth Prods. Corp., 333 Ill. App.3d 158, 266 Ill.Dec. 676, 775 N.E.2d 238 (2002). In Hunter, ExxonMobil Corporation purchased and installed a hydraulic lift table in one of its plants. ExxonMobil subsequently hired Jeffrey Hunter to work as an electrician in the plant. Approximately nine months later ExxonMobil sold the plant to Tenneco Packaging, Inc. After the sale of the plant, Hunter continued working at the plant for Tenneco. Shortly thereafter, while Hunter was performing maintenance on the lift table, it killed him by collapsing on him. Hunter's widow sued the manufacturer of the lift table. The manufacturer filed a third-party action against ExxonMobil and Tenneco. ExxonMobil pleaded the exclusivity immunity of the Illinois Workers' Compensation Act as a defense and asserted it in a motion for summary judgment. The trial court denied the motion for summary judgment, and ExxonMobil appealed the denial.
Expressly rejecting the rationale of Fields, supra, the Illinois Court of Appeals held that the Illinois Legislature could have expressly limited the exposure of former employers under the Illinois Workers' Compensation Act, but did not do so. The Illinois Court of Appeals held that a former employer is not an "employer" as defined in the Illinois Workers' Compensation Act and thus is not "entitled to protection of the exclusivity provision of the [Workers' Compensation] Act." Hunter, 333 Ill.App.3d at 165, 266 Ill.Dec. 676, 775 N.E.2d at 243.
6 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 100.01[3], p. 100-6 (2002), states that "[t]he controlling fact in establishing exclusiveness [of the remedy] is the relationship of the parties at the time of occurrence of the injury. Their relationship at other times, such as the time of the employer's [injury-causing] misconduct or the time of bringing the suit, is immaterial." (Footnote omitted; emphasis added.)
An essential element of the exclusivity immunity of § 25-5-52 is that the injury be "occasioned by an accident ... proximately resulting from and while [the employee is] engaged in the actual performance of the duties of his or her employment" with the employer. Likewise, an essential element of the exclusivity immunity of § 25-5-53 is that the "injury... is due to an accident ... while [the employee is] engaged in the service or business of the employer." The timing and circumstances of Robert's accident and injury do not satisfy either essential element. Robert's injury was not "occasioned by an accident ... proximately resulting from and while [Robert was] engaged in the actual performance of the duties of his ... employment" with Kimberly-Clark. § 25-5-52. Nor was Robert's "injury ... due to an accident... while [Robert was] engaged in the service or business of" Kimberly-Clark. § 25-5-53. Therefore, the claim of immunity by Kimberly-Clark does not meet the express requirements of either § 25-5-52 or § 25-5-53. The argument by Kimberly-Clark that it was Robert's employer at the time of its alleged negligence or wantonness is not enough to satisfy all of the express requirements of either section for the exclusivity-immunity.
*827 The language of the exclusivity provisions read together with the definitions of "employer" and "employee" do not "`fairly and reasonably' support[]" an interpretation that these statutes protect former employers from actions by former employees for injuries sustained after the termination of the employer-employee relationship. Ex parte Dunlop Tire Corp., 706 So.2d at 733 (quoting Ex parte Beaver Valley Corp., 477 So.2d at 411). Thus, we agree with Minnesota Court of Appeals, the Illinois Court of Appeals, and L. Larson in rejecting the claim of immunity in such a case. Konken, supra, Hunter, supra, and 6 Larson, Larson's Workers' Compensation § 100.03[3]. Accordingly, we reject the interpretation adopted by the Oregon Supreme Court in Fields, supra. Consequently, we reverse the judgment of the Court of Civil Appeals and remand the case for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
MOORE, C.J., and HOUSTON, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.
SEE, J., dissents.
LYONS, J., recuses himself.
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70 F.3d 1273
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.Mohammed S. SAATY, Plaintiff-Appellant,v.George V. VOINOVICH, Governor; Michael Dewine; Melody L.Turner; Terry L. Morris, Warden; Draice, Sgt.;Michael A. Leonard, Defendants-Appellees.
No. 95-3111.
United States Court of Appeals, Sixth Circuit.
Nov. 20, 1995.
Before: LIVELY, NELSON and SUHRHEINRICH, Circuit Judges.
ORDER
1
Mohammed S. Saaty appeals a district court grant of summary judgment for defendants in this civil rights action filed under 42 U.S.C. Sec. 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Saaty filed his complaint in the district court alleging, inter alia, that the conditions of his confinement at the Chillicothe Correctional Institution (CCI) caused his exposure to tuberculosis (TB). Plaintiff named the defendant state and prison officials in unspecified capacities and sought injunctive relief and compensatory and punitive damages. Defendants moved for summary judgment, and plaintiff responded in opposition. The district court granted defendants' motion and entered summary judgment for defendants.
3
Plaintiff filed a timely notice of appeal, and the district court denied plaintiff leave to proceed in forma pauperis and certified that an appeal would not be taken in good faith. This court also denied plaintiff pauper status after it was determined that an appeal would not be taken in good faith. Saaty v. Voinovich, No. 95-3111 (6th Cir. April 12, 1995). Thereafter, plaintiff paid the appellate filing fee. On appeal, plaintiff contends that the conditions of his confinement are unconstitutional. Defendants respond that the district court's judgment was proper.
4
A grant of summary judgment will be reviewed de novo on appeal. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Generally, summary judgment is proper where "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." Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988) (quoting Fed.R.Civ.P. 56(c)). Only factual disputes which may have an effect on the outcome of a lawsuit under substantive law are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be "genuine," a dispute must involve evidence upon which a jury could find for the nonmoving party. Id. The burden is upon the moving party to show that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Thereafter, the nonmoving party must present significant probative evidence in support of the complaint to defeat the motion. Anderson, 477 U.S. at 249-50. The nonmoving party is required to show more than a metaphysical doubt as to the material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Here, summary judgment for defendants was proper.
5
Plaintiff cannot show a genuine issue of material fact remaining for trial. To establish an Eighth Amendment claim based upon the denial of medical attention, plaintiff must show that defendants unnecessarily and wantonly inflicted pain upon him. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). Similarly, plaintiff must show that defendants were deliberately indifferent in subjecting him to other allegedly unconstitutional conditions of his confinement. See Wilson v. Seiter, 501 U.S. 294, 303 (1991). The pertinent inquiry contains both objective and subjective components. Id. at 297-300. While exposure of an inmate to an unreasonable risk of serious damage to future health may violate the Eighth Amendment, Helling v. McKinney, 113 S.Ct. 2475, 2481-82 (1993), plaintiff must show that defendants failed to take reasonable steps to abate a known and substantial risk of serious harm. See Farmer v. Brennan, 114 S.Ct. 1970, 1977-84 (1994). In this case, plaintiff cannot show that defendants failed to take reasonable steps to abate an unreasonable risk and that they acted with a culpable state of mind.
6
On appeal, plaintiff does not challenge the district court's determination that he was given appropriate medical treatment after he tested positive for exposure to TB. Rather, plaintiff contends that defendants were deliberately indifferent to an unreasonable risk of exposure to TB. Plaintiff specifically cites prison overcrowding, an inadequate ventilation system, inadequate sanitary facilities, and lax disease identification and isolation procedures as contributing to an unreasonable risk of TB infection at CCI. Certainly, TB is a serious disease which can be spread easily under conditions of confinement. However, there is no evidence of record that TB is a more serious problem at CCI than in other prisons. While plaintiff contends that all prisoners are not tested annually for TB as defendants allege, plaintiff does not claim that defendants knowingly failed to isolate and remove any prisoner known to have active TB. Again, plaintiff cannot show that defendants failed to take any reasonable step to abate the risk of infection or that any defendant acted with a sufficiently culpable state of mind. Simply put, no genuine issue of material fact remains for trial with respect to whether any defendant knowingly subjected plaintiff to a pervasive risk of contracting TB. Under these circumstances, summary judgment for defendants was proper.
7
Accordingly, the judgment of the district court is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
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201 A.2d 26 (1964)
Michael P. VACCARO and Mary Ann Vaccaro, Appellants,
v.
Arvid R. ANDRESEN, Appellee.
No. 3373.
District of Columbia Court of Appeals.
Argued February 10, 1964.
Decided June 4, 1964.
*27 Claire O. Ducker, Sr., Washington, D. C., with whom Franklin L. Carroll, Falls Church, Va., was on the brief, for appellants.
Bernard D. Lipton, Washington, D. C., with whom S. David Rubenstein, Washington, D. C., was on the brief, for appellee.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
HOOD, Chief Judge.
Michael P. Vaccaro, one of the appellants here, and appellee Andresen were officers and stockholders in a corporation engaged in the florist business. The corporation was in financial difficulties and on March 31, 1961, Vaccaro and his wife executed an "installment discount" note to a bank in the sum of $2,556. The net proceeds of the note amounted to $2,009.54 and Vaccaro paid $2,000 of it to the corporation. According to Vaccaro the note was executed and the money paid to the corporation at the request of Andresen, who orally guaranteed payment of the note. According to Andresen, he merely asked Vaccaro "to put some money in the corporation." After receiving $2,000 the corporation carried the note on its books as a corporate liability and the corporation made some payments on it.
In June 1961 Andresen executed a paper guaranteeing payment of the Vaccaro note, promising to make the future installment payments on it and agreeing to reimburse Vaccaro for payments he had made on the note. In October 1961 the corporation went into bankruptcy and Vaccaro filed a claim against the bankrupt estate for money loaned "to the bankrupt corporation on March 31, 1961." The present action was brought by Vaccaro and his wife against *28 Andresen on the guaranty agreement of June 1961, alleging that Andresen had paid $568 on the note and seeking recovery of the balance of $1,988. The trial court found that Vaccaro made a loan to the corporation on March 31 and that the guaranty agreement of June 7 lacked consideration, and the court denied recovery.
An enforceable contract of guaranty or suretyship requires, as do all contracts, a valid consideration; and where the guaranty is given subsequent to the original contract, the guaranty must be supported by a new consideration, separate and independent from the original contract.[1] Here there was no evidence of any new consideration to Andresen for execution of the agreement of 1961.
It is true that the agreement recites a consideration of "One Dollar ($1.00) and other good and valuable consideration," but appellants did not even press the argument that this recitation established a sufficient consideration.[2] They do argue, however, that the agreement was under seal and that a sealed instrument imports a consideration. Although the current tendency is to minimize the distinction between sealed and unsealed instruments, this jurisdiction continues to recognize the distinction.[3] However, we do not agree with appellants that the agreement here in question is an instrument under seal. It does conclude with the words: "Witness my hand and seal," but this recital, in the absence of a seal, does not operate to make the instrument one under seal. It is the attachment or adoption of a seal that is the operative fact.[4] Here, no word, symbol or scroll indicative of a seal follows the signature. There is a single dot or period immediately after the signature, but we are not willing to rule that this minute mark constitutes a seal, in the absence of proof that it was deliberately placed there to serve as a seal.
Affirmed.
NOTES
[1] Bader v. Williams, D.C.Mun.App., 61 A. 2d 637 (1948); McMillan v. Zozier, 257 Ala. 435, 59 So.2d 563 (1952); Pierce v. Wright, 117 Cal.App.2d 718, 256 P.2d 1049 (1953); Bearden v. Ebcap Supply Co., 108 Ga.App. 375, 133 S.E.2d 62 (1963). See also, Keane v. Gartrell, D.C. Cir., 334 F.2d 556 (decided April 30, 1964).
[2] Cf. Allen v. Allen, D.C.Mun.App., 133 A. 2d 116 (1957).
[3] Wells v. Alropa Corp., 65 App.D.C. 281, 82 F.2d 887 (1936); McNulty v. Medical Service of District of Columbia, Inc., D.C.Mun.App., 176 A.2d 783 (1962). Note, however, that the Uniform Commercial Code, enacted for the District of Columbia on December 30, 1963, to become effective January 1, 1955 Public Law 88-243, in § 28:2-203 provides:
"The affixing of a seal to a writing evidencing a contract for sale or an offer to buy or sell goods does not constitute the writing a sealed instrument and the law with respect to sealed instruments does not apply to such a contract or offer."
[4] 1A Corbin, Contracts § 242 (1963).
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981 So.2d 1207 (2008)
RUDD
v.
STATE.
No. 2D08-1273.
District Court of Appeal of Florida, Second District.
May 13, 2008.
Decision without published opinion. Pet.denied.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
AVERY K. TAYLOR,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3090
__________________________
Petition for review of the Merit Systems Protection
Board in case No. DA0752090155-I-1.
__________________________
Decided: September 10, 2010
__________________________
AVERY K. TAYLOR, of Houston, Texas, pro se.
DAVID C. BELT, Appellate Attorney, Office of General
Counsel, United States Postal Service, of Washington,
DC, for respondent. With him on the brief was LORI J.
DYM, Chief Counsel, Office of General Counsel, United
States Postal Service, of Washington, DC, and TONY
WEST, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC. Of counsel was SCOTT A.
TAYLOR v. USPS 2
MACGRIFF, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC.
__________________________
Before RADER, Chief Judge, FRIEDMAN and LINN, Circuit
Judges.
PER CURIAM.
Avery Taylor appeals a final decision of the Merit Sys-
tems Protection Board (“Board”), which affirmed his
removal from his position as a letter carrier with the U.S.
Postal Service (“Service”) for unexcused absences. Taylor
v. U.S. Postal Serv., No. DA-0752-09-0155-I-1 (M.S.P.B.
Dec. 17, 2009) (“Decision”). Because the Board’s opinion
was supported by substantial evidence and was not arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law, we affirm.
Taylor joined the Service in October 1993. In Sep-
tember 2005, he stopped reporting for work, claiming that
he suffered from job-related stress. Between November
2005 and July 2007, the Service sent Taylor multiple
letters asking that he report for duty or provide medical
documentation of his condition. In response to each
request, Taylor submitted letters from his doctor that
described his illness, and the Service took no action to
remove him. By June 2006, Taylor exhausted all of his
paid leave, so the Service placed him on leave without pay
(“LWOP”) status.
In September 2007, the Service sent Taylor another
letter asking him to report or furnish medical documenta-
tion, at the risk of losing approved leave. Taylor re-
sponded in writing, saying that his medical condition had
not changed since July 2007, but without providing evi-
dence. In November 2007, the Service ordered Taylor to
3 TAYLOR v. USPS
report for a fitness for duty (“FFD”) medical examination.
The designated physician, Dr. Charles Covert, submitted
a report, which a Service physician used to make a medi-
cal assessment, deciding that Taylor was fit for duty.
Taylor objected to filling out a consent form prior to the
examination and claims that Covert never examined him.
According to the government, Service officials received
only the final assessment, not Covert’s initial FFD report.
Decision at 11 n.6.
On November 21, 2007, the Service sent Taylor a di-
rective informing him of the results of the medical as-
sessment and ordering him to report on November 26,
2007 or be considered absent without leave (“AWOL”) and
face removal. Taylor never reported or responded to this
directive. On April 8, 2008, the Service issued a notice of
proposed removal based on the charge of “Unsatisfactory
Attendance – AWOL.” After the ten-day deadline to
answer the notice, Taylor submitted a letter from his
physician that stated that Taylor was still unable to work.
On June 13, 2008, the Service removed him. On appeal,
the Board affirmed the Service’s ruling. Taylor timely
appealed the Board’s final decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
We affirm a Board decision unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C. §
7703(c). To take an adverse action against an employee,
an agency must (1) “establish by preponderant evidence
that the charged conduct occurred,” (2) “show a nexus
between that conduct and the efficiency of the service,”
and (3) “demonstrate that the penalty imposed was rea-
sonable in light of the relevant factors set forth in Doug-
las v. Veterans Admin., 5 M.S.P.R. 280, 307-08 (1981).”
TAYLOR v. USPS 4
Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir.
2009).
“In order to prove a charge of AWOL, an agency must
show by preponderant evidence that the employee was
absent, and that his absence was not authorized or that
his request for leave was properly denied.” Wesley v. U.S.
Postal Serv., 94 M.S.P.R. 277, 283 (2003). An AWOL
charge automatically satisfies the nexus requirement
because “any sustained charge of AWOL is inherently
connected to the efficiency of the service.” Davis v. Veter-
ans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986).
Taylor argues that the Service improperly changed
his status from LWOP to AWOL because Covert never
actually examined him before clearing him for duty. In
response, the government claims that Covert’s report is
“not directly relevant” because Service officials did not
receive or rely on it, only the final medical assessment.
Resp’t’s Br. 26-27. This assertion is suspect: the assess-
ment cited Covert’s evaluation, and both the November
21, 2007 directive and the notice of proposed removal
referred to the “medical evaluation by Dr. Charles Cov-
ert.” Regardless, the Board found that Taylor never
requested extra leave or provided evidence of illness for
the period from November 26, 2007 to April 8, 2008.
Decision at 9-10. Taylor does not dispute these facts.
Under these circumstances, the Service had discretion to
deny Taylor additional leave based on his failure to pro-
vide requested documentation. See Washington v. Dep’t of
Army, 813 F.2d 390, 393 (Fed. Cir. 1987) (affirming denial
of LWOP where the employee failed to submit “material
necessary to support her claim that she was incapacitated
for work”). There was substantial evidence for the Board
to conclude that Taylor was indeed absent without per-
mission.
5 TAYLOR v. USPS
Taylor also claims that the Service denied him mini-
mum due process because he never had an opportunity to
rebut Covert’s report. To the contrary, Taylor received
multiple opportunities to present documentation of con-
tinuing illness both before and after the medical assess-
ment. He claims that he believed that the doctor’s letter
he submitted in July 2007 obviated the need for further
documentation. However, the Service requested addi-
tional medical evidence in September 2007 prior to order-
ing the FFD examination. Taylor responded in writing
(which shows that he received the letter) but never pro-
vided the requested information. He also acknowledged
receipt of the Service’s directive of November 21, 2007—
which informed him of the medical assessment and or-
dered him to report to work—but did not reply or request
additional leave without pay. Taylor then attended an
investigative interview with his Postmaster in February
2008 but did not offer new medical evidence. Decision at
7. Not until May 9, 2008 did Taylor supply another
physician’s letter, when it was too late to respond to the
notice of proposed removal.
As to the penalty of removal, the Board properly bal-
anced the relevant Douglas factors. It credited Taylor’s
fifteen years of service and clean disciplinary record, but
noted testimony by Service officials that a letter carrier’s
absence creates serious hardships, and that Taylor could
not be rehabilitated. We discern no clear error in the
Board’s review of the Service’s penalty. Cf. Law v. U.S.
Postal Serv., 852 F.2d 1278, 1279 (Fed. Cir. 1988) (affirm-
ing the Service’s removal of a mailhandler for “for irregu-
lar attendance and for an instance of AWOL”).
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
TAYLOR v. USPS 6
COSTS
No costs.
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822 F.2d 1088
Hollins (Franzana, Jerome, Jr.), Williams (Douglas, II,Patricia Ann)v.Board of Water Commissioners of City of Detroit
NO. 85-1899
United States Court of Appeals,Sixth Circuit.
JUL 13, 1987
1
Appeal From: E.D.Mich.
2
APPEAL DISMISSED.
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792 N.E.2d 421 (2003)
341 Ill. App.3d 238
275 Ill.Dec. 190
In re ROBERT S., Alleged to be a Person in Need of Involuntary Psychotropic Medication (The People of the State of Illinois, Petitioner-Appellee, v. Robert S., Respondent-Appellant).
No. 2-02-0262.
Appellate Court of Illinois, Second District.
June 30, 2003.
*423 Teresa L. Berge (Court-appointed), Guardianship & Advocacy Commission, Rockford, Jeffery M. Plesko (Court-appointed), Guardianship & Advocacy Commission, Chicago, William J. Conroy, Jr., Guardianship & Advocacy Commission, Rockford, for Robert S.
Meg Gorecki, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, Diane L. Campbell, State's Attorneys Appellate Prosecutor, Elgin, for the People.
Justice GROMETER delivered the opinion of the court:
Respondent, Robert S., appeals from an order of the circuit court of Kane County granting the State's petition to involuntarily administer psychotropic medication. We affirm.
I. BACKGROUND Respondent was charged with a crime not specified in the record. Subsequently, respondent was found unfit to stand trial and admitted to the Elgin Mental Health Center (EMHC). On November 19, 2001, respondent's psychiatrist, Dr. Romulo Nazareno, filed a petition seeking to involuntarily administer psychotropic medication to respondent. A hearing on the petition was originally scheduled for November 26, 2001. However, it was continued four times, and it not did commence until January 18, 2002. Respondent represented himself at the hearing.
On January 18, 2002, the State indicated it was ready to proceed. However, respondent requested a two-week continuance in order to subpoena his witnesses. The State objected and suggested that the court begin the hearing, noting that it was unlikely that the hearing could be completed in one day. The trial court decided to commence the hearing with the understanding that after the State presented its case, the matter would be continued to give respondent time to subpoena his witnesses.
The State's first witness was Dr. Nazareno. Dr. Nazareno diagnosed respondent with paranoid schizophrenia. Dr. Nazareno testified that respondent's symptoms included hallucinations, delusions, and a deterioration in the ability to function. For instance, respondent complained of sleep deprivation as a result of auditory hallucinations. Moreover, respondent believed that the government implanted a microchip in his brain in an effort to read his mind. Respondent claimed that EMHC staff and patients were sending messages to a "mind reader" by actions such as rubbing their chins or adjusting *424 their eyeglasses. In addition, respondent threatened to kill an EMHC patient who respondent believed was having a relationship with women intended for respondent.
Dr. Nazareno noted that respondent's symptoms subsided when he was medicated on a previous occasion. However, once the medication order expired, defendant began hearing voices, having trouble sleeping, and believing that female celebrities had fallen in love with him. Respondent also threatened to kill a member of the EMHC staff.
Dr. Nazareno recommended administering Risperidone to respondent because in the past he responded well to the drug, without side effects. As alternatives, Dr. Nazareno recommended Haldol, Haldol Deconate, and, for side effects, Cogentin. Dr. Nazareno opined that the benefits of administering the psychotropic medication would outweigh the harm. He also stated that respondent lacks the capacity to make a reasoned decision about potential side effects and benefits of the treatment. According to Dr. Nazareno, respondent's psychosis is the reason he cannot make a knowledgeable decision whether to take the medication. Dr. Nazareno tried less restrictive treatments, such as counseling and group therapy, but they were not effective without medication.
On cross-examination, Dr. Nazareno admitted that respondent never threatened him and that he has never personally witnessed respondent threaten others. Dr. Nazareno also acknowledged that during the court proceeding, he did not see a deterioration in respondent's functioning and noted that respondent did not exhibit his usual symptoms, such as talking to himself. However, Dr. Nazareno stated that respondent's behavior and the way in which he asked questions showed some paranoia and delusions. For instance, during questioning, respondent insinuated that Dr. Nazareno hears voices. Dr. Nazareno pointed out that there are times during which an individual can contain delusions by focusing on a task.
Over respondent's objection, the State called Lesley Kane, an intern at the Kane County Diagnostic Center (KCDC). Kane conducted a court-ordered independent examination of respondent. Kane's examination consisted of interviewing respondent for 60 to 90 minutes, talking to respondent's case worker, and reviewing two to three years of respondent's records. The trial court qualified Kane as an expert over respondent's objection.
Citing symptoms similar to those identified by Dr. Nazareno, Kane diagnosed respondent with paranoid schizophrenia. With respect to whether respondent exhibited a deterioration of his ability to function, suffering, or threatening behavior, Kane stated that respondent has become increasingly tense and agitated, verbally aggressive, and more threatening. In addition, his sexual preoccupations have increased and EMHC staff noted an increase in the use of profanity. Kane further testified that respondent's illness has existed for a period marked by the continuing presence of symptoms, noting that respondent has had a history of delusions since the 1970s. Kane believed that the benefits of psychotropic medication would outweigh the harm. Kane noted that respondent's behavior poses a risk to himself and to others and that the side effects of the medication can be dealt with effectively. Kane opined that respondent's suffering, the deterioration of his ability to function, and his violent and threatening behavior would decrease with medication.
Kane also concluded that respondent lacked the capacity to make a reasoned decision about psychotropic medication. According to Kane, respondent is unaware of the severity of his illness. Regarding *425 less restrictive alternatives, Kane stated that respondent has been offered psychosocial therapy, but, because respondent does not have insight into his illness, "it doesn't seem as though that alone is going to be helpful." Kane also noted that in individuals with schizophrenia, therapy is more of an augment to medication. Kane opined "to a reasonable degree of psychological certainty" that respondent meets the criteria for psychotropic medication.
On cross-examination, Kane admitted that during her independent examination of respondent she did not observe defendant suffering from delusions or hallucinations. She also indicated that respondent did not exhibit such symptoms at the hearing.
The State recalled Dr. Nazareno. He testified that respondent does not have the capacity to make a reasoned and rational choice regarding whether he needs medication. Dr. Nazareno noted that respondent does not believe he is ill. Dr. Nazareno added that respondent's judgment is so impaired by his illness that he sees only the risks, and not the benefits, of the medication.
Kelli Childress, a former assistant State's Attorney, testified that she first met respondent in 1999 when she was assigned to a hearing in which respondent was involved. On or about October 31, 2001, Childress received a telephone call from respondent. Respondent told Childress that he remembered her from the 1999 hearing and he had been thinking about her ever since. Respondent accused Childress of helping the government with a scheme to read his mind. Respondent believed that he and Childress were supposed to be together and that the government indicated to him that Childress felt the same way about him. Respondent asked Childress if she would help him get out of EMHC so that they could be together. Childress told respondent that she was involved with someone else and that the information he had was incorrect. Childress stated she felt threatened during the conversation.
Respondent called Childress again on December 31, 2001. According to Childress, the tone of this conversation was less accusatory and more romantic. Respondent told Childress that she was beautiful, that he had feelings for her, and that the government informed him that they were supposed to be together. Respondent stated that he thought about marrying Childress, having children, and moving to California. Respondent told Childress that the government informed him that she was romantically involved with other patients at EMHC and with a player for the Chicago Bears.
Childress testified that she was familiar with respondent's case and why he was at EMHC. She was afraid that if respondent believed that she was part of some government scheme to read his mind, he could become violent. As a result, after both calls, Childress contacted the State's Attorney's office and the court liaison at EMHC. In addition, following the first call, she contacted local police. Childress has not heard from respondent since the second call. On cross-examination, Childress admitted that respondent did not specifically threaten her.
Mark Thomas, a licensed clinical social worker at EMHC, testified that he is respondent's primary therapist. Thomas stated that respondent's psychiatric diagnosis is paranoid schizophrenia. According to Thomas, respondent's condition had been deteriorating over the four- or five-month period prior to the hearing, with increased agitation, verbal outbursts, and verbal aggression.
*426 According to Thomas, respondent believes that the voices he hears are caused by a chip implanted by the government. Respondent believes that the chip enables the government to read his mind. On two occasions in the three months prior to the hearing, respondent became agitated with Thomas because respondent believed that Thomas was "signaling the mind readers" by rubbing his limbs. A third incident occurred when Thomas sided with a technician who had a dispute with respondent. At that time, respondent cursed at Thomas within inches of his face. Thomas considered respondent's behavior during the third incident to constitute a threat.
Thomas testified that respondent told him that he suffers from hallucinations and delusions. The hallucinations and delusions center on female celebrities, but have included staff at EMHC. In addition, respondent told Thomas that he wanted to have a relationship with Childress and he hoped to have babies. Respondent also told Thomas that his conversations with Childress had gone well and that she had been receptive.
Thomas also stated that respondent believes that certain women have been "reserved" for him by the mind readers. Respondent becomes verbally abusive when he believes these women have ignored him or when he believes the women have been having relationships with other EMHC patients. Respondent confronted one patient who he believed was having a sexual relationship with one of his "reserved" women.
Thomas opined that respondent suffers as a result of hearing voices. Thomas believed that respondent's ability to function has deteriorated in the three months prior to the hearing. Thomas also stated that of the 36 patients he is in charge of or monitors, respondent poses the highest risk. Thomas stated that respondent is "in the upper echelon" of patients of who frighten him.
On cross-examination, Thomas testified that respondent has a "remarkable ability" to contain his psychosis. Nevertheless, he thought that respondent had exhibited evidence of mental illness in the courtroom. For instance, Thomas noted respondent's allusions to government mind readers and his claim that the government implanted a chip in his body.
The State then called respondent as a witness. Respondent objected. The trial court sustained respondent's objection on the basis that respondent was at EMHC because he was found unfit to stand trial in an underlying criminal proceeding. The State then rested. Respondent requested two weeks to subpoena his witnesses, and the court continued the matter until February 1, 2002.
At that time, respondent first called Denise Dojka, Psy.D., a clinical psychologist at EMHC and respondent's psychological therapist. She stated that respondent suffers from paranoid schizophrenia. Dojka has never seen respondent participate in any violent behavior. Nevertheless, based on a risk assessment she conducted of respondent, Dojka believed that he was one of the more dangerous people in his unit.
On cross-examination, Dojka testified that respondent hears voices that call him derogatory names and wake him at night. Respondent believes that the voices are from the government and that they are transmitted through an implant in his head. The voices inform respondent that women who would like to have a sexual relationship with him are being brought to other patients. Respondent told Dojka that he would have liked to have a relationship with Childress and that he wanted Childress to have his children. However, he no longer believed that it was possible *427 to have a relationship with Childress because he believes that Childress was given large sums of money to have sex with another patient who respondent believes is inferior to himself.
Dojka testified that she considered respondent dangerous because he has several risk factors. According to Dojka, respondent's history of violence, symptoms of mental illness, refusal of treatment, anger, and the lack of feasibility of future plans all contribute to a finding that respondent has at least a moderate risk of committing violence in the future, especially since he is not medicated.
Dojka feared that respondent would commit violence against Childress and Lynette Krueger, Dojka's diagnostic psychology student. Respondent wanted to have relationships with these women, but he believed that they were sleeping with others. This made respondent feel betrayed and resentful.
Dojka believed that respondent needs to be medicated. She noted that on a previous occasion he was medicated for a 90-day period and his sleeping improved, he was much more relaxed, he participated in activities, and he seemed to be functioning at a higher level. Dojka also believed that respondent is suffering. She noted that he told her he felt "tormented" by the voices.
Becky Mitchell, an activity therapist at EMHC, testified that between October 2001 and February 2002, she accompanied respondent to two or three activities. Mitchell testified that during these activities, respondent did not cause her any problems and he did not have any problems with the other patients. However, Mitchell opined that respondent had the potential to be dangerous to others. Mitchell's opinion was based on respondent's status as a mental health patient, the statements of clinicians, and her past experiences with other patients. On cross-examination, Mitchell testified that respondent told her that he hears voices that "torment" him.
Respondent's last witness was Jose Padilla, an activity staff member at EMHC. Padilla testified that he never had to restrict respondent as a result of his behavior. Padilla did not observe respondent express any anger towards other patients. On cross-examination, Padilla acknowledged that he sees respondent only about once a month.
The trial court found respondent subject to the involuntary administration of medication for a period not to exceed 90 days. In addressing the factors relied on in making its determination, the trial court noted, among other things, that respondent lacked the capacity to make a reasoned decision about the treatment. The trial court denied respondent's motion to reconsider, and this timely appeal followed.
II. ANALYSIS
Before addressing the merits of respondent's appeal, we note that this case is moot. The trial court order authorizing the administration of psychotropic medication was limited to a period of 90 days. That period has long since passed. Nevertheless, because this case involves "an event of short duration which is `capable of repetition, yet evading review'" (In re Barbara H., 183 Ill.2d 482, 491, 234 Ill. Dec. 215, 702 N.E.2d 555 (1998), quoting In re A Minor, 127 Ill.2d 247, 258, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989)), we will address the issues raised by respondent. See In re Cathy M., 326 Ill.App.3d 335, 339, 260 Ill.Dec. 162, 760 N.E.2d 579 (2001).
Initially, respondent claims that the trial court's order should be reversed because it fails to comply with section 2-107.1 of the Mental Health and Developmental Disabilities *428 Code (Mental Health Code or Code) (405 ILCS 5/2-107.1 (West 2000)) in three respects. First, respondent argues that the hearing on the petition to administer psychotropic medication was held outside the statutorily mandated time frame. Second, respondent contends that the court's order does not designate the persons authorized to administer the medication. Third, respondent asserts that the petition listed a criterion for involuntary treatment that is no longer recognized by statute. These inquiries constitute questions of law, which we review de novo. In re M.A., 293 Ill.App.3d 995, 998, 228 Ill.Dec. 266, 689 N.E.2d 138 (1997). We address each contention in turn.
Respondent first argues that the State failed to comply with the timing provisions for a hearing on a petition to administer psychotropic medication. According to respondent, section 2-107.1(a-5)(2) of the Code (405 ILCS 5/2-107.1(a-5)(2) (West 2000)) requires the trial court to hold a hearing on a petition to administer psychotropic medication no later than 42 days after the petition is filed. Respondent notes that the hearing in this case did not commence until 60 days after the petition was filed. Accordingly, respondent urges reversal of the trial court's order.
Section 2-107.1(a-5)(2) governs the time frame within which the trial court must hold a hearing on a petition to involuntarily administer psychotropic medication. That provision provides in relevant part:
"The court shall hold a hearing within 7 days of the filing of the petition. The People, the petitioner, or the respondent shall be entitled to a continuance of up to 7 days as of right. An additional continuance of not more than 7 days may be granted to any party (i) upon a showing that the continuance is needed in order to adequately prepare for or present evidence in a hearing under this Section or (ii) under exceptional circumstances. The court may grant an additional continuance not to exceed 21 days when, in its discretion, the court determines that such a continuance is necessary in order to provide the recipient with an examination pursuant to Section 3-803 or 3-804 of this Act, to provide the recipient with a trial by jury as provided in Section 3-802 of this Act, or to arrange for the substitution of counsel as provided for by the Illinois Supreme Court Rules." 405 ILCS 5/2-107.1(a-5)(2) (West 2000).
Here, the petition to administer psychotropic medication was filed on November 19, 2001. Pursuant to section 2-107.1(a-5)(2), the trial court was required to hold a hearing within seven days. In fact, a hearing on the petition was scheduled for November 26, 2001. The record suggests that at the November 26 hearing, the trial court denied respondent's motion to proceed pro se. The court then continued the matter on respondent's motion until November 30, 2001.
On November 30, 2001, the trial court denied respondent's motion to reconsider its decision denying respondent's request to represent himself. Respondent then moved for an independent examination to be conducted by F.P. Johnson. See 405 ILCS 5/2-107.1(a-5)(2), 3-804 (West 2000). The trial court granted respondent's motion for an independent examination and continued the cause to December 21, 2001. See 405 ILCS 5/2-107.1(a-5)(2) (West 2000) (granting trial court the discretion to continue matter for a period not to exceed 21 days in order to provide the recipient with an examination pursuant to Section 3-804 of the Code). However, the court appointed the KCDC to conduct the examination.
The record reflects that on December 21, 2001, the trial court entered an order *429 continuing the matter until January 4, 2002, on respondent's motion. On January 4, 2002, respondent renewed his motion to represent himself. The trial court granted the motion. The court then entered an order continuing the matter until January 18, 2002. The record shows that the matter was continued "on the State's motion for cause, Respondent agreeing to such motion, also seeking continuance]." On January 18, 2002, the State indicated it was ready to proceed. However, respondent requested a two-week continuance in order to subpoena his witnesses. The State objected and suggested that the court begin the hearing, noting that it was unlikely that the hearing could be completed in one day. The trial court decided to commence the hearing with the understanding that after the State presented its case, the matter would be continued to give respondent time to subpoena his witnesses. Consequently, the hearing on the petition did not commence until 60 days after the petition was originally filed.
In interpreting the Code's procedural safeguards, this court has advocated strict construction in favor of the respondent. In re Janet S., 305 Ill.App.3d 318, 320, 238 Ill.Dec. 700, 712 N.E.2d 422 (1999). However, it is well established that when a party acquiesces in proceeding in a certain manner, he cannot later complain prejudice on appeal. Hill v. Cowan, 202 Ill.2d 151, 159, 269 Ill.Dec. 875, 781 N.E.2d 1065 (2002) ("[O]ne cannot complain of error which he induced or in which he participated at trial"); see also People v. Villarreal, 198 Ill.2d 209, 228, 260 Ill. Dec. 619, 761 N.E.2d 1175 (2001); People v. Abston, 263 Ill.App.3d 665, 671, 200 Ill.Dec. 361, 635 N.E.2d 700 (1994). Under the facts of this case, it is apparent that all but one of the delays in commencing the hearing on the petition were attributable to respondent. Only the continuance granted on January 4, 2002, was not solely attributable to respondent. However, the record reveals that the continuance on January 4, 2002, was a mutual request by both parties. The order continuing the matter reflects that the continuance was granted on the State's motion, but that respondent agreed to the continuance and asked for a continuance himself. Accordingly, while the hearing on the petition was not held within the statutorily mandated time frame, we decline to reverse the trial court's order because respondent either agreed to the delays or they were attributable to him.
Respondent also complains that the trial court's order violated section 2-107.1 of the Code because it did not designate the persons authorized to administer medication. Section 2-107.1(a-5)(6) provides that an order authorizing the administration of psychotropic medication "shall designate the persons authorized to administer the authorized involuntary treatment under the standards and procedures of this subsection." 405 ILCS 5/2-107.1(a-5)(6) (West 2000). Here, the trial court order authorizing involuntary treatment provides:
"The petition is granted, and ROBERT S[.] shall receive psychotropic medication to be administered by DR. NAZARENO (or designee whose license and credentials permit) at Elgin Mental Health Center for a period not to exceed 90 days."
Relying on two recent cases from this court (In re Richard C., 329 Ill.App.3d 1090, 264 Ill.Dec. 234, 769 N.E.2d 1071 (2002); In re Cynthia S., 326 Ill.App.3d 65, 259 Ill.Dec. 959, 759 N.E.2d 1020 (2001)), respondent argues that the trial court's order is defective because it does not limit treatment to specific health care professionals who are familiar with his condition. We disagree.
*430 In Cynthia S., this court reversed the trial court order authorizing the administration of psychotropic medication because the court's order failed to designate the persons authorized to administer the prescribed psychotropic medication. Cynthia S., 326 Ill.App.3d at 69, 259 Ill.Dec. 959, 759 N.E.2d 1020. In Cynthia S., the trial court order provided "`The petition is granted, and Cynthia [S.] shall receive psychotropic medication (including the necessary lab work and medical examinations) to be administered by the Illinois Department of Human Services for a period not to exceed 90 days, by those staff whose license allows them to administer psychotropic medication pursuant to Illinois law.'" Cynthia S., 326 Ill.App.3d at 68, 259 Ill.Dec. 959, 759 N.E.2d 1020. We found that requiring the trial court to list named individuals authorized to administer medication ensures involvement by a qualified professional familiar with the recipient's individual situation and health status. Cynthia S., 326 Ill.App.3d at 68-69, 259 Ill.Dec. 959, 759 N.E.2d 1020. See also In re Mary Ann P., 202 Ill.2d 393, 408, 269 Ill.Dec. 440, 781 N.E.2d 237 (2002) ("[W]e believe that the specificity requirement for involuntary treatment orders reflects the legislature's legitimate concern that only qualified health care professionals, familiar with the respondent's mental and physical status, be permitted to administer the treatment and that the respondent, as well as the treaters, be notified of the exact nature of the treatment authorized").
Similarly, in Richard C., this court reversed the trial court order authorizing the administration of psychotropic medication because the trial court order failed to designate the persons authorized to administer the prescribed psychotropic medication. Richard C., 329 Ill.App.3d at 1094, 264 Ill.Dec. 234, 769 N.E.2d 1071. In Richard C., the trial court order provided, "`It is hereby order [sic] the patient is to receive haloperidol decanoate IM of 12.5-100 mg/monthly with EKG as needed to monitor respondent's cardiac state, CBC and differential blood testing yearly and blood chemistries yearly.'" Richard C., 329 Ill.App.3d at 1094, 264 Ill.Dec. 234, 769 N.E.2d 1071.
The court orders in both Cynthia S. and Richard C. did not specifically list named individuals authorized to administer psychotropic medication. In contrast, here the trial court order listed Dr. Nazareno or a designee. At the hearing on the petition, Dr. Nazareno, a staff psychiatrist at EMHC, testified that he is licensed to practice medicine in Illinois and to administer psychotropic medication in this state. Furthermore, Dr. Nazareno testified that he has been treating respondent since April 1999. Accordingly, Dr. Nazareno is a qualified professional familiar with the recipient's individual situation and health status.
Respondent argues, however, that allowing a "designee" to administer the medications runs contrary to established case law. See In re Jennifer H., 333 Ill.App.3d 427, 431, 266 Ill.Dec. 776, 775 N.E.2d 616 (2002) (holding trial court's involuntary treatment order invalid for failure to list persons authorized to administer treatment); Cynthia S., 326 Ill.App.3d at 68-69, 259 Ill.Dec. 959, 759 N.E.2d 1020. According to respondent, the trial court's order authorizes anyone with a license and permitting credentials to administer the medications. We disagree.
As noted above, the trial court order authorizes the administration of psychotropic medication by Dr. Nazareno "or designee whose license and credentials permit." A "designee" is defined as "[a] person who has been designated to perform some duty or carry out some specific role." Black's Law Dictionary 457 (7th *431 ed.1999). We read the trial court order as allowing Dr. Nazareno to name, in his absence, an individual whose license and credentials permit him or her to administer the medication to respondent. This interpretation recognizes the reality that Dr. Nazareno may not always be available to personally administer the prescribed treatment. It also reinforces the concern of the legislature by ensuring that respondent's treatment is administered under the guidance of Dr. Nazareno, a qualified health care professional who is familiar with respondent's situation and health status. Thus, we find that the trial court's order complied with section 2-107.1(a-5)(6) of the Code.
Respondent next contends that the petition did not comply with section 2-107.1 of the Code because it listed "disruptive behavior," which is no longer a statutory prerequisite for involuntary treatment. According to respondent, the inclusion of this factor in the petition resulted in an invalid pleading, which prejudiced him. We disagree.
Prior to June 2, 2000, section 2-107.1 of the Code authorized the involuntary administration of psychotropic medication if, among other things, the State proved by clear and convincing evidence that the recipient had a serious mental illness or developmental disability and that because of said condition, "the recipient exhibits any one of the following: (i) deterioration of his ability to function, (ii) suffering, (iii) threatening behavior, or (iv) disruptive behavior." 405 ILCS 5/2-107.1(a)(4)(B) (West 1998). Effective June 2, 2000, the legislature amended section 2-107.1 to delete the reference to "disruptive behavior." Pub. Act 91-726, eff. June 2, 2000 (amending 405 ILCS 5/2-107.1 (West 1998)). See Jennifer H., 333 Ill.App.3d at 431, 266 Ill.Dec. 776, 775 N.E.2d 616.
In the present case, the petition to administer involuntary medication consisted of a preprinted form completed and signed by Dr. Nazareno. Among other things, the petition stated that respondent refuses to submit to treatment by psychotropic medication, that he lacks capacity to give informed consent, and that because of his mental illness, respondent "exhibits any one of the following; [sic] deterioration of ability to function, suffering, threatening behavior, or disruptive behavior." (Emphasis in original.) In examining the petition, it is apparent that Dr. Nazareno underscored the terms "deterioration of ability to function," "suffering," and "threatening behavior." By preparing the form in this manner, we believe that it was Dr. Nazareno's intention to proceed on the petition by demonstrating that respondent suffered from a serious mental illness and that he exhibited a deterioration of his ability to function, suffering, or threatening behavior. It would have been better practice to excise the term "disruptive behavior" from the petition. Nevertheless, we cannot say that the presence of the term in the petition rendered the pleading invalid.
Moreover, as respondent concedes, the trial court did not mention the "disruptive behavior" factor in making its decision. Instead, the court found that the State had proven by clear and convincing evidence that respondent had experienced a deterioration in his ability to function, was suffering, and had displayed threatening behavior. Thus, we fail to see how respondent was prejudiced.
Next, respondent argues that the trial court's order must be reversed because the State failed to prove by clear and convincing evidence that respondent lacked the capacity to make a reasoned decision about the proposed treatment. More specifically, respondent asserts that the State failed *432 to present sufficient evidence that he was informed in writing about the risks and benefits of the proposed course of medication.
When reviewing the sufficiency of the evidence, a court of appeals will reverse the fact finder's determination only if it is against the manifest weight of the evidence. In re Edward S., 298 Ill. App.3d 162, 165, 232 Ill.Dec. 348, 698 N.E.2d 186 (1998). A trial court's decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Edward S., 298 Ill.App.3d at 165, 232 Ill.Dec. 348, 698 N.E.2d 186.
Section 2-107.1(a-5)(4)(E) of the Code (405 ILCS 5/2-107.1(a-5)(4)(E) (West 2000)) provides that the State must prove by clear and convincing evidence that the recipient lacks the capacity to make a reasoned decision about the proposed course of treatment. Cathy M., 326 Ill.App.3d at 341, 260 Ill.Dec. 162, 760 N.E.2d 579. To this end, the Code requires the proposed recipient's physician or the physician's designee to advise the recipient "in writing[] of the side effects, risks, and benefits of the treatment, as well as alternatives to the proposed treatment, to the extent such advice is consistent with the recipient's ability to understand the information communicated." 405 ILCS 5/2-102(a-5) (West 2000). If the patient is not informed of the side effects, risks, and benefits of the proposed involuntary treatment, the trial court order authorizing such treatment must be reversed. Cathy M., 326 Ill.App.3d at 342, 260 Ill. Dec. 162, 760 N.E.2d 579; Edward S., 298 Ill.App.3d at 166, 232 Ill.Dec. 348, 698 N.E.2d 186.
In both Cathy M. and Edward S., we reversed the trial court orders authorizing the administration of psychotropic medication because the State failed to present clear and convincing evidence that the respective respondents were informed of the risks and the benefits of the proposed course of treatment. Cathy M., 326 Ill. App.3d at 343, 260 Ill.Dec. 162, 760 N.E.2d 579; Edward S., 298 Ill.App.3d at 166, 232 Ill.Dec. 348, 698 N.E.2d 186. In Cathy M., the respondent was not given any written information regarding the proposed treatment. Cathy M., 326 Ill.App.3d at 342, 260 Ill.Dec. 162, 760 N.E.2d 579. In Edward S., there was hearsay testimony regarding the contents of a note given to the respondent by a doctor. However, this court held that this evidence was insufficient to demonstrate that the State provided the respondent with the necessary information from which he could make an informed decision. Edward S., 298 Ill. App.3d at 166, 232 Ill.Dec. 348, 698 N.E.2d 186.
In contrast, the record discloses that Dr. Nazareno informed respondent in writing about the side effects, risks, and benefits of the proposed involuntary treatment. Dr. Nazareno testified that on several occasions he discussed psychotropic medication with respondent. According to Dr. Nazareno, when he tried to discuss the drugs he wished to administer, respondent told him he did not need the medication. Dr. Nazareno also testified that when he attempted to give respondent information regarding each drug, respondent told him that he "knows the medication." Dr. Nazareno testified that the last time he tried to give respondent information about the drugs was two or three weeks before the hearing. At that time, respondent stated that "he [did] not need it." Thus, it appears that each time Dr. Nazareno attempted to present respondent with written information, respondent refused to accept the information. We cannot accept respondent's request that we reverse the trial court's order where his own actions made it impossible for Dr. *433 Nazareno to accomplish his statutory duties. See In re Barry B., 295 Ill.App.3d 1080, 1086, 230 Ill.Dec. 404, 693 N.E.2d 882 (1998). Based on this evidence, we cannot say that the trial court's order to administer psychotropic medication was against the manifest weight of the evidence.
Respondent next challenges the trial court's decision to appoint psychologist Leslie Kane as an independent examiner. Respondent asserts that the trial court erred in qualifying Kane as an expert because she lacked sufficient education and training in the field of psychiatric medicine. Alternatively, respondent argues that the trial court should have limited Kane's testimony to "non-psychiatric subjects."
Whether an individual is an expert is a matter generally reserved to the sound discretion of the trial court. People v. Miller, 173 Ill.2d 167, 186, 219 Ill.Dec. 43, 670 N.E.2d 721 (1996). An individual will be allowed to testify as an expert where his or her experience and qualifications provide him or her with knowledge that is not common to laypersons and where the testimony will aid the trier of fact in reaching its conclusions. People v. Henney, 334 Ill.App.3d 175, 184, 267 Ill. Dec. 681, 777 N.E.2d 484 (2002). There is no precise requirement as to how the expert acquires specialized knowledge or experience. People v. Novak, 163 Ill.2d 93, 104, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994). An expert may develop expertise through research, education, scientific study, training, practical experience, or a combination of each. Miller, 173 Ill.2d at 186, 219 Ill.Dec. 43, 670 N.E.2d 721; Novak, 163 Ill.2d at 104, 205 Ill.Dec. 471, 643 N.E.2d 762. At least one court has concluded that an expert's education alone is sufficient to qualify him or her as an expert. In re J.J., 327 Ill.App.3d 70, 79, 260 Ill.Dec. 693, 761 N.E.2d 1249 (2001) (finding that trial court did not err in qualifying witness as an expert where witness had bachelor's and master's degrees in psychology and was working on his doctorate in the same field). We will not reverse the trial court's determination absent an abuse of discretion. Henney, 334 Ill.App.3d at 184, 267 Ill.Dec. 681, 777 N.E.2d 484.
Here, the record shows that Kane was not licensed to practice psychology. However, Kane testified that she performed the examination of respondent under the supervision of a licensed clinical psychologist. Moreover, she testified regarding her education and experience. Kane had a bachelor's degree in psychology and a master's degree in counseling psychology. At the time of the hearing, Kane was completing her eighth and final year in a doctorate program. While Kane was working towards her master's degree, she interned at a counseling agency where she worked with adolescents and their families. After completing her master's degree, Kane spent eight years at a community counseling center where she performed crisis intervention counseling for juvenile delinquents. Kane also worked as an extern at the Kane County Diagnostic Center and the Cook County jail. In September 2001, Kane started an internship at the Kane County Diagnostic Center. According to Kane, she has extensive experience with psychiatric and psychological patients. In addition, Kane testified that she had previously testified in court as an expert. The trial court qualified Kane as an expert because she had previously testified in court as an expert witness.
Although we do not necessarily agree that the fact that Kane previously testified as an expert in court was a sufficient basis to qualify her as an expert on this occasion, we may affirm the result below on any basis that is supported by *434 the record. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App.3d 563, 573, 268 Ill.Dec. 531, 778 N.E.2d 1153 (2002). In this case, we find that the combination of Kane's education, training, and experience provided a valid basis to qualify her as an expert.
Moreover, we do not accept respondent's alternate argument that the trial court should have limited Kane's testimony to nonpsychiatric subjects. As respondent notes in his brief, the primary difference between a psychiatrist and a psychologist is that the former has the power to prescribe controlled substances while the latter does not. See People v. McDonald, 186 Ill.App.3d 1096, 1100, 134 Ill.Dec. 759, 542 N.E.2d 1266 (1989). Here, although Kane testified that she believed that the administration of psychotropic medications would benefit respondent, she did not testify regarding the type or dosage of the psychotropic medications Dr. Nazareno wanted authorization to administer to respondent. Accordingly, we find that the trial court's decision did not constitute an abuse of discretion.
Respondent also claims that the admission of Kane's testimony deprived him of due process. According to respondent, the trial court should have appointed a psychiatrist as an independent examiner.
Section 3-804 of the Code governs independent examinations in mental health proceedings. That provision provides in relevant part:
"The respondent is entitled to secure an independent examination by a physician, qualified examiner, clinical psychologist, or other expert of his choice. If the respondent is unable to obtain an examination, he may request that the court order an examination to be made by an impartial medical expert pursuant to Supreme Court Rules or by a qualified examiner, clinical psychologist or other expert." (Emphasis added.) 405 ILCS 5/3-804 (West 2000).
Whether the statute mandates the appointment of a psychiatrist is a question of statutory construction, which we review de novo. People v. Roake, 334 Ill.App.3d 504, 510, 268 Ill.Dec. 286, 778 N.E.2d 272 (2002). The primary rule of statutory construction is to ascertain and give effect to the legislature's intent. Regency Savings Bank v. Chavis, 333 Ill.App.3d 865, 867, 267 Ill.Dec. 504, 776 N.E.2d 876 (2002). Generally, the most reliable indicator of legislative intent is the plain language of the statute. In re Kenneth F., 332 Ill. App.3d 674, 684, 266 Ill.Dec. 189, 773 N.E.2d 1259 (2002). The plain language of section 3-804 of the Code does not require the trial court to appoint a psychiatrist as an independent examiner. Rather, the statute allows the court to appoint an impartial medical expert pursuant to supreme court rules or a qualified examiner, clinical psychologist, or other expert. As we previously discussed, Kane was properly qualified as an expert.
Despite the plain language of the statute, respondent insists that he was deprived of due process by the trial court's failure to appoint a psychiatrist as his independent examiner. According to respondent, the trial court's decision to appoint a psychologist effectively foreclosed any chance that he could obtain a judgment in his favor. Citing to In re Ashley K., 212 Ill.App.3d 849, 156 Ill.Dec. 925, 571 N.E.2d 905 (1991), respondent contends that the trial court was required to accept the testimony of the State's psychiatric experts over any testimony by experts in the field of psychology that he presented.
In Ashley K., the trial court entered an order precluding the subject minor from undergoing any therapy and from visiting her former foster parents. In so acting, the trial court rejected the testimony of two child psychiatrists, Drs. Leventhal and *435 Zinn, in favor of the testimony of two other individuals, the minor's therapist and Anne Brown, a licensed psychologist.
On appeal, the reviewing court noted that Brown was not a medical doctor and that at the time Brown testified, she had been a licensed psychologist for only 3½ years and had not seen or spoken to the minor in almost 3 years. Brown's testimony was based on reports from medical experts which Brown deemed "confusing." The minor's therapist had been out of school for only 1½ years and had been licensed for only 9 months. In addition, the court took judicial notice that another court had cast doubt on Brown's conclusions and held that her testimony was questionable because it was based on a test she was too inexperienced to administer. In contrast, Dr. Leventhal had been a medical doctor for 16 years and had been board certified in child adolescent psychiatry for 10 years. Dr. Zinn had been a medical doctor for 20 years and board certified in child psychiatry for 13 years. The court then stated:
"The circuit court cannot disregard expert medical testimony that is not countervailed by other competent medical testimony or medical evidence. Moreover, the circuit court, itself, cannot second-guess medical experts. If the circuit court does not follow medical evidence that is not refuted by other medical evidence, the circuit court is acting contrary to the evidence." Ashley K., 212 Ill.App.3d at 890, 156 Ill.Dec. 925, 571 N.E.2d 905.
It is this language from Ashley K. that respondent claims foreclosed any chance that the trial court would rule in his favor.
We question the applicability of this language from Ashley K. to the present case. First, we note that Ashley K. did not involve the interpretation of the Code. In fact, mandating the trial court to adopt the opinion of a psychiatrist over the opinion of a psychologist in mental health cases renders the independent-examination provision of the Code virtually meaningless. It would require the trial court to disregard language authorizing it to appoint a "qualified examiner, clinical psychologist or other expert." See 405 ILCS 5/3-804 (West 2000). This clearly ignores the plain language of the statute.
More importantly, however, we do not interpret Ashley K. to compel the trial court to accept psychiatric testimony over psychological testimony. In In re C.B., 248 Ill.App.3d 168, 188 Ill.Dec. 28, 618 N.E.2d 598 (1993), the court interpreted the passage we quote from Ashley K. as "reaffirm[ing] the notion that the best interest of the child is the paramount consideration and that qualified and competent medical testimony concerning the child for whom the custody decision is being made must not be disregarded when determining what is in the child's best interest." (Emphasis in original.) C.B., 248 Ill.App.3d at 179, 188 Ill.Dec. 28, 618 N.E.2d 598. In other words, the decision in Ashley K. turned on the credibility, or lack thereof, of the witnesses. In this regard, we believe that Kane was a credible, qualified individual, and her appointment did not predispose the trial court to rule against respondent. Significantly, we note that Kane's examination consisted of interviewing respondent for 60 to 90 minutes, talking to respondent's case worker, and reviewing two to three years of respondent's records. Further, Kane conducted her examination just weeks before respondent's hearing, and her examination was performed under the supervision of a licensed psychologist. Moreover, there is no indication that Kane's credentials had previously been called into question. These factors distinguish Kane's testimony from that of the witnesses in Ashley K. Accordingly, we conclude that the trial court did not err in appointing Kane as respondent's independent examiner.
*436 Next, respondent argues that section 2-107.1 of the Code "was never intended to be applied to non-dangerous pretrial detainees." According to respondent, when the statute is applied to such individuals, it is constitutionally infirm. In this regard, respondent complains that section 2-107.1 fails to take into consideration the seriousness of the crime charged. Respondent also claims that the trial court failed to determine whether he would be able to participate in a fair trial.
At the outset, we note that section 2-107.1 of the Code does not exempt pretrial detainees from its coverage. In In re Evelyn S., 337 Ill.App.3d 1096, 273 Ill.Dec. 1, 788 N.E.2d 310 (2003), the Fifth District rejected the proposition that the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/100-1 et seq. (West 1998)), rather than the Mental Health Code, governs the administration of psychotropic medication to pretrial detainees found unfit to stand trial. Evelyn S., 337 Ill.App.3d at 1102, 273 Ill.Dec. 1, 788 N.E.2d 310. The court noted that while the Criminal Code includes procedures for the involuntary commitment of defendants found unfit to stand trial, it does not contain provisions for determining whether the treatment of a pretrial detainee found unfit to stand trial may include the involuntary administration of psychotropic medication. Evelyn S., 337 Ill.App.3d at 1104, 273 Ill.Dec. 1, 788 N.E.2d 310. As the Evelyn S. court aptly suggested, in the absence of the procedural safeguards provided by the Mental Health Code, there would be no procedural safeguards at all. Evelyn S., 337 Ill.App.3d at 1104, 273 Ill. Dec. 1, 788 N.E.2d 310. Thus, respondent's argument that section 2-107.1 does not apply to pretrial detainees is not well taken.
In addition, we find little merit in respondent's argument that the application of section 2-107.1 deprived him of his constitutional right to a fair trial. In support of his position, defendant cites principally to United States v. Gomes, 289 F.3d 71 (2d Cir.2002), vacated & remanded, 539 U.S. ____, 123 S.Ct. 2605, 156 L.Ed.2d 625 (2003), United States v. Sell, 282 F.3d 560 (8th Cir.2002), vacated & remanded, 539 U.S. ____, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), and United States v. Brandon, 158 F.3d 947 (6th Cir.1998). In Gomes, Sell, and Brandon, the courts addressed whether the government could forcibly administer psychotropic medication for the sole purpose of rendering a detainee competent to stand trial. Gomes, 289 F.3d at 75; Sell, 282 F.3d at 562; Brandon, 158 F.3d at 949. The Supreme Court recently reviewed the decision in Sell, and held that the Constitution permits the involuntary administration of psychotropic medication for the sole purpose of rendering a defendant competent to stand trial "if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." Sell, 539 U.S. at ____, 123 S.Ct. at 2184, 156 L.Ed.2d at 203 (2003). See also Gomes, 539 U.S. ____, 123 S.Ct. 2605, 156 L.Ed.2d 625 (2003) (vacating the decision of the lower court and remanding for further consideration in light of Sell).
Here, the trial court was not asked to decide whether respondent could be subject to the involuntary administration of psychotropic medication solely for the purpose of rendering him competent to stand trial. Indeed, the record is barren of any evidence that the petition to administer psychotropic medication was filed solely for the purpose of fitness for trial. Moreover, respondent never argues that the purpose of the State's petition was to render him fit for trial. Instead, the trial *437 court reviewed each of the factors listed in section 2-107.1(a-5)(4) of the Code (405 ILCS 5/2-107.1(a)(4) (West 2000)) and found that the State proved each factor by clear and convincing evidence. The court found that respondent suffered a mental illness, the result of which resulted in a deterioration of his ability to function, suffering, and threatening behavior. Moreover, the court found that the benefits of the proposed treatment outweighed the harm and that less restrictive alternatives were inappropriate. It is evident that the trial court granted the State's petition because it found the involuntary administration of psychotropic medication to be medically appropriate. Notably, in rendering its decision the trial court never mentioned respondent's fitness to stand trial. Accordingly, respondent's reliance on Gomes, Sell, and Brandon is misplaced, and we reject respondent's constitutional challenges. See United States v. Keeven, 115 F.Supp.2d 1132, 1137 (E.D.Mo.2000) (finding procedural safeguards outlined in Brandon inapplicable where purpose of petition was to manage and prevent the recipient's dangerousness).
Lastly, respondent urges reversal of the trial court's order on the basis that the attorney in his criminal trial was not notified of the hearing on the petition. Section 2-107.1(a-5)(1) of the Code (405 ILCS 5/2-107.1(a-5)(1) (West 2000)) provides that "[t]he petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-fact, if any, and the guardian, if any." Although the statute does not require notice to the attorney representing the respondent in a criminal trial, respondent asserts that "notions of fundamental fairness and due process" require notification of his criminal defense attorney. Respondent asserts that information regarding a client's regimen of psychotropic medication can be crucial to the criminal defense attorney at hearings on his client's fitness.
A criminal defendant is presumed fit to stand trial. 725 ILCS 5/104-10 (West 2000); People v. Easley, 192 Ill.2d 307, 318, 249 Ill.Dec. 537, 736 N.E.2d 975 (2000). Once a criminal defendant is found unfit to stand trial, the defendant must be found fit before any trial can occur. In this regard, the Criminal Code requires the defendant's treatment supervisor to submit to the defense a written progress report containing information regarding, inter alia, "the type, the dosage and the effect of the medication on the defendant's appearance, actions and demeanor." 725 ILCS 5/104-18 (West 2000). This information must be presented to the defense under certain circumstances, including prior to the date for any hearing on the issue of the defendant's unfitness or when the treatment supervisor believes that the defendant has attained fitness. Thus, contrary to respondent's argument, the Criminal Code contains a provision requiring notification to a criminal defendant's attorney regarding his or her client's drug treatment. Although this notice comes after the decision to involuntarily administer psychotropic medication has been made, it resolves respondent's concern that the criminal defense attorney be aware of a respondent's drug regimen prior to any further proceedings on the respondent's fitness.
III. CONCLUSION
For the reasons stated above, we affirm the judgment of the circuit court of Kane County.
Affirmed.
BOWMAN and BYRNE, JJ., concur.
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988 F.2d 1157
26 U.S.P.Q.2d 1038
ADVANCED CARDIOVASCULAR SYSTEMS, INC.,Plaintiff/Cross-Complaint Defendant/Appellee,v.SCIMED LIFE SYSTEMS, INC., Defendant,andRobert L. Hess, Cross-Complainant/Appellant.
No. 92-1157.
United States Court of Appeals,Federal Circuit.
March 9, 1993.Rehearing Denied; Suggestion for Rehearing In Banc DeclinedMay 13, 1993.
Richard A. Bardin, Fulwider, Patton, Lee & Utecht, Los Angeles, CA, argued, for plaintiff/cross-complaint defendant/appellee. With him on the brief were Craig B. Bailey and Stephen J. Strauss.
Keith V. Rockey, Rockey & Rifkin, Chicago, IL, argued, for cross-complainant/appellant. With him on the brief was Kathleen A. Lyons. Also on the brief was Michael R. Cunningham, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, MN.
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MICHEL, Circuit Judge.
PAULINE NEWMAN, Circuit Judge.
1
Robert L. Hess appeals the judgment of the United States District Court for the District of Minnesota,1 entered upon motion made under Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissing his cross-complaint with prejudice, on the ground of laches. We vacate the dismissal.
BACKGROUND
2
The underlying litigation between Advanced Cardiovascular Systems ("ACS") and SciMed Life Systems ("SciMed"), relating to a patented balloon dilation catheter for use in the treatment of cardiovascular disease, began on March 27, 1987. ACS sued SciMed for infringement of United States Patent No. 4,323,071 ("the '071 patent"), issue date April 6, 1982, inventors John B. Simpson and Edward W. Robert. SciMed moved for summary judgment of non-infringement, and on September 30, 1988 the district court granted the motion. On appeal the Federal Circuit held that summary adjudication was inappropriate in view of disputed material facts relevant to claim construction, and remanded the case for trial. Advanced Cardiovascular Systems, Inc. v. SciMed Life Systems, Inc., 887 F.2d 1070, 12 USPQ2d 1539 (Fed.Cir.1989).
3
During the course of discovery SciMed had learned of and contacted Robert L. Hess, an engineer, who stated, in outline, that he assisted the named inventors, Dr. Simpson and Dr. Robert, both physicians, by providing ideas and expertise on the structure and materials of construction of the catheter. Drs. Simpson and Robert had applied for a patent on the catheter without informing Mr. Hess, who stated that he did not know of the existence of the '071 patent and the fact that he was not named as a co-inventor until he was contacted by SciMed in December 1987. SciMed raised the defense of patent invalidity in the ACS/SciMed litigation, based on Mr. Hess' statements about inventorship.
4
In August 1990 Mr. Hess moved to intervene as a cross-complainant in the ACS/SciMed action, which had not yet been tried. He sought a declaration that he was a joint inventor of the invention claimed in the '071 patent, and corresponding correction of the patent document. The motion to intervene was granted in December 1990. On ACS' motion under Fed.R.Civ.P. 12(b)(6), in May 1991 the district court dismissed Mr. Hess' cross-complaint for failure to state a claim upon which relief can be granted.2
5
The district court observed that the '071 patent issued in 1982, and that Mr. Hess first acted to establish his legal rights when he moved to intervene in August 1990. Drawing an analogy to the six year limit to recovery of damages for past infringement, 35 U.S.C. § 286, and the six year statute of limitations applying to conversion of personal property under Minnesota law, the district court held that Mr. Hess' delay for more than eight years after patent issuance was unreasonable. The court found that ACS was prejudiced by the delay because Mr. Hess' intervention was made on the eve of the trial between ACS and SciMed, and would have delayed resolution of that case. The court dismissed Mr. Hess' claim with prejudice, on the ground of laches.
6
ACS and SciMed settled their lawsuit on December 27, 1991. Final judgment on Mr. Hess' claim was entered on December 30, 1991, and this appeal followed.
FED.R.CIV.P. 12(b)(6)
7
Rule 12(b)(6) authorizes the defendant to move, before filing a responsive pleading, for dismissal of the complaint. A motion made under Rule 12(b)(6) challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced. The purpose of the rule is to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and trial activity. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). Such a motion, which cuts off a claimant at the threshold, must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). See also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
8
Whether a complaint states a claim upon which relief can be granted is a determination of law, and receives de novo appellate review; no deference is owed to the holding of the trial court. See Eades v. Thompson, 823 F.2d 1055, 1060 (7th Cir.1987). A dismissal under Rule 12(b)(6), to be sustained, must be correct as a matter of law when the allegations of the complaint are taken as true. Air Products and Chemicals, Inc. v. Reichhold Chemicals, Inc., 755 F.2d 1559, 1562 n. 4, 225 USPQ 121, 123 n. 4 (Fed.Cir.), cert. dismissed, 473 U.S. 929, 106 S.Ct. 22, 87 L.Ed.2d 700 (1985). Disputed issues are construed favorably to the complainant, United States v. Mississippi, 380 U.S. 128, 143, 85 S.Ct. 808, 816, 13 L.Ed.2d 717 (1965), and all reasonable inferences are drawn in favor of the complainant. Thus, to the extent that factual questions are raised and are material to the result, dismissal is improper unless there is no reasonable view of the facts which could support the claim.
9
The issue is whether Mr. Hess' claim was correctly barred on the ground of laches, within the constraints of Rule 12(b)(6).
LACHES
10
Dismissal of a claim on the ground of laches requires that there be (1) unreasonable and unexcused delay in bringing the claim, and (2) material prejudice to the defendant as a result of the delay. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1028, 22 USPQ2d 1321, 1324 (Fed.Cir.1992) (en banc ). Both of these factual premises must be met, predicate to the weighing of the facts of delay and prejudice to determine whether justice requires that the claim be barred. The mere passage of time does not constitute laches. When a limitation on the period for bringing suit has been set by statute, laches will generally not be invoked to shorten the statutory period. Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed.Cir.1988) (en banc ). The burden of proof is on the party that raises the affirmative defense. Although the burden of coming forward with exculpatory evidence may shift to the claimant, as explained in Aukerman, the ultimate burden of proof does not change.
11
The strictures of Rule 12(b)(6), wherein dismissal of the claim is based solely on the complainant's pleading, are not readily applicable to a determination of laches. Although a Rule 12(b)(6) motion may be grounded on an affirmative defense, the defense of laches usually requires factual development beyond the content of the complaint. The facts evidencing unreasonableness of the delay, lack of excuse, and material prejudice to the defendant, are seldom set forth in the complaint, and at this stage of the proceedings can not be decided against the complainant based solely on presumptions. In the words of the Eighth Circuit:
12
So far as laches is concerned, it has been repeatedly held that mere lapse of time does not constitute laches. "It is to be determined by consideration of justice, and that is dependent upon the circumstances of each particular case." Des Moines Terminal Co. v. Des Moines Union Ry. Co., 8 Cir., 52 F.2d 616, 630 [1931]. In order to determine whether the plaintiff's claim was barred by laches, we would have to know more than is disclosed by her amended complaint.
13
Leimer v. State Mutual Life Assurance Co., 108 F.2d 302, 305 (8th Cir.1940) (other citations omitted).
14
The district court held that Mr. Hess' claim was barred by laches, on the following premises and presumptions:
A. The Period of Delay
15
The district court measured Mr. Hess' delay in bringing suit from the issuance of the '071 Patent in 1982, until he sought to intervene in the ACS/SciMed suit in 1990. The court held that the date of patent issuance started the period by which laches is measured, whether or not Mr. Hess knew of the issuance.
16
When applying the equitable doctrine of laches in order to bar a claim, the period of delay is measured from when the claimant had actual notice of the claim or would have reasonably been expected to inquire about the subject matter. We draw analogy to suit for patent infringement, wherein the period of delay is measured from the time when the patent owner knew or should have known of the infringement. Aukerman, 960 F.2d at 1032, 22 USPQ2d at 1328. The district court did not apply these criteria, but referred to Sontag Chain Stores Co. v. National Nut Co., 310 U.S. 281, 295, 60 S.Ct. 961, 967, 84 L.Ed. 1204 (1940), wherein the Court stated that upon issuance of a patent and its recordation in the Patent Office "constructive notice of [its] existence goes thus to all the world". However, Sontag Chain Stores did not relate to laches. In Sontag constructive notice was invoked so that the accused infringer, who did not have actual knowledge of either the existence of the patent or its reissue by the patentee, could nonetheless be presumed to have that knowledge in order to obtain the benefit of the defense of intervening rights. Sontag Chain Stores harbors no principles applicable to laches. Constructive notice is not an appropriate substitute for the determination of reasonableness or excuse for delay.
17
Although the patent law contains some provisions involving constructive notice (e.g., the patent marking provision and the provision for recordation of patent assignments), to establish laches against an unnamed inventor the period of delay can not start while the potential claimant remains ignorant that a cause of action has arisen. The Supreme Court described the requirement of actual knowledge of the existence of the asserted right:
18
[Laches] is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them. There must, of course, have been knowledge on the part of the plaintiff of the existence of the rights, for there can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.
19
Halstead v. Grinnan, 152 U.S. 412, 417, 14 S.Ct. 641, 643, 38 L.Ed. 495 (1894). Absent actual knowledge, the facts must support a duty of inquiry:
20
[T]he law is well settled that, where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put upon a man of ordinary intelligence the duty of inquiry.
21
Johnston v. Standard Mining Co., 148 U.S. 360, 370, 13 S.Ct. 585, 589, 37 L.Ed. 480 (1893).
22
This knew-or-should-have-known criterion is appropriate to actions to correct inventorship. It is in harmony with the patent statute, for in accordance with 35 U.S.C. § 2563 inventorship may be corrected at any time, whether by direct application to the commissioner or by the court. Since the defense of patent invalidity based on incorrect inventorship can be raised at any time, correction of inventorship should be similarly available at any time. Were laches measured constructively from the date of patent issuance, an erroneously omitted inventor could be barred from remedy before he or she learned of the existence of the patent. Such a stricture, although perhaps conducive to repose in patent litigation, does not accord with either § 256 or the practice that allows challenges to patent validity throughout the patent life.
23
We conclude that the district court erred, as a matter of law, in measuring Mr. Hess' delay from the date of issuance of the patent, in the absence of proof that Mr. Hess knew or should have known that the patent had issued and that he was omitted as a joint inventor. Mr. Hess stated in his motion to intervene that after he helped to develop the catheter he "was not further involved in any of the catheter work that followed" and did not know that a patent had been obtained. The reasonableness of the behavior of the person against whom laches is asserted depends on the facts of the particular case. Whether and when Mr. Hess had information sufficient to place upon him a duty of inquiry is a material question of fact, and upon motion to dismiss under Rule 12(b)(6) all reasonable factual inferences must be drawn in favor of Mr. Hess. The question of unreasonable and unexcused delay could not have been determined adversely to Mr. Hess under Rule 12(b)(6) for, accepting his allegations as true, his pleading does not establish an unreasonable delay from the time he had actual notice of the issuance of the '071 patent.
B. Analogy to Statutory Limitations Periods
24
The district court also noted that a delay of more than six years was presumptively unreasonable, based on analogy to other statutes. The court found such statutes "persuasive legislative expressions of unreasonable delay."
25
When a federal statute does not set a period of limitation to suit, courts have looked to "analogous" federal and state statutes to determine whether there should be such a limitation, and its term. Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). In this case the district court looked to 35 U.S.C. § 286, which limits to six years the period for which a patentee may receive pre-suit damages from an infringer, and to the Minnesota six-year statute of limitations for actions arising from the conversion of personal property. By analogy the district court concluded that Mr. Hess' delay of eight years after patent issuance was unreasonable.
26
Although equity will not support a claimant who sleeps on his/her rights unreasonably and prejudicially, the analogous fixed period of limitations does not bar Mr. Hess' inventorship action. In Aukerman this court confirmed that six years after a patentee knew or should have known of the infringement, there arose a presumption of laches. However, unlike a statutory period of limitation on suit, the presumption of laches is rebuttable. The presumption serves to place upon the patentee the burden of coming forward with evidence that the delay is reasonable or excusable, see Rule 301 of the Federal Rules of Evidence, while the ultimate burden of proving laches remains on the party raising the defense. Aukerman, 960 F.2d at 1035, 22 USPQ2d at 1331.
27
We hold that this rule is equally applicable to the determination of laches in challenges to inventorship. Thus a delay of more than six years after the omitted inventor knew or should have known of the issuance of the patent will produce a rebuttable presumption of laches. However, a presumption will not support judgment on the pleading under Rule 12(b)(6). As discussed in Part A, Mr. Hess' pleading did not show unreasonable and inexcusable delay after he had actual knowledge of the '071 patent. The delay element of laches was not established for purposes of Rule 12(b)(6).
C. The Prejudice Element
28
The district court found litigation prejudice as the prejudice element of laches, stating that "A belated inventorship contest would only serve to delay this Court's consideration of the central issues which have been pending for over four years".
29
Although the principles of equity ignore no form of prejudice, the prejudice element of laches is not established solely because the raising of the claim would delay other litigation. Justice requires that an issue in legitimate dispute not be held forfeited (the district court dismissed Mr. Hess' complaint with prejudice) merely because it would complicate other pending litigation. As the Supreme Court observed a century ago, "forfeitures are never favored. Equity always leans against them, and only decrees in their favor when there is full, clear and strict proof of a legal right thereto." Henderson v. Carbondale Coal and Coke Co., 140 U.S. 25, 33, 11 S.Ct. 691, 694, 35 L.Ed. 332 (1891).
30
There was no suggestion that Mr. Hess engaged in a tactical manipulation of legal process in seeking intervention in the ACS/SciMed litigation or in the timing of his intervention. It was SciMed, not Hess, who first raised the issue of Hess' co-inventorship; Hess' intervention appears to have been brought in order to secure a personal remedy, the factual premises of which were already before the court. In all events, to the extent that Mr. Hess' intervention would have delayed resolution of the litigation between ACS and SciMed, a less extreme remedy than dismissal with prejudice could have been employed. For example, Hess' claim could have been separated pursuant to Fed.R.Civ.P. 42(b).4
31
Therefore, we can not sustain the district court's conclusion that the prejudice element of laches was shown. Since the defense of laches requires both unreasonable delay and prejudice, and since neither was established on the pleading, Mr. Hess' complaint was improvidently dismissed under Rule 12(b)(6).
SUMMARY JUDGMENT
32
Rule 12(b)(6) provides that if matters outside the complainant's pleading are presented to the court the motion shall be treated as one for summary judgment under Rule 56.5
33
Although not identified or discussed by the district court, the parties appear to agree that matters outside the pleading were considered by the court. Mr. Hess states that if the court decided the motion as if on summary judgment, the court improperly resolved disputed material facts adversely to him. ACS responds that Mr. Hess knew from the content of the Rule 12(b)(6) motion the grounds upon which his claim was challenged, and that it is immaterial whether the motion were treated as a motion to dismiss for failure to state a claim or as a motion for summary judgment. That is not correct. A movant's challenge to the sufficiency of the complaint as a matter of law, brought under Rule 12(b)(6), is not sufficient notice that the non-movant must respond as if to a motion for summary judgment, and place material facts in dispute.
34
Rule 56, as recently interpreted, places a substantial burden upon the non-movant to place in dispute the material facts of the case. In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Court warned that "Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' designate 'specific facts showing that there is a genuine issue for trial' ". Id. at 324, 106 S.Ct. at 2553 quoting Fed.R.Civ.P. 56(c). In contrast, on motion to dismiss on the complainant's pleading it is improper for the court to decide the case on facts not pleaded by the complainant, unless the complainant had notice thereof and the opportunity to proceed in accordance with the rules of summary judgment. Inland Container Corp. v. Continental Insurance Co., 726 F.2d 400, 401 (8th Cir.1984); Woods v. Dugan, 660 F.2d 379 (8th Cir.1981).
35
In such event, the rules governing summary judgment must apply. In this case there was a clear dispute as to the factual questions material to laches. When these material facts are resolved in Mr. Hess' favor, laches is not established as a matter of law. At the least, Mr. Hess was entitled to the opportunity to show that there was sufficient evidence to raise genuine issues of material fact. Thus the district court's ruling on the motion made under Rule 12(b)(6) can not stand, even if viewed as a motion for summary judgment.
CONCLUSION
36
The dismissal of Mr. Hess' cross-complaint on the ground of laches is vacated. The case is remanded for further proceedings.
37
Taxable costs in favor of Mr. Hess.
38
VACATED AND REMANDED.
1
Advanced Cardiovascular Systems, Inc. v. SciMed Systems, Inc., No. 4-87-733, 1991 WL 135477 (D.Minn. December 30, 1991)
2
Rule 12(b)
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
... (6) failure to state a claim upon which relief can be granted....
A motion making any of these defenses shall be made before pleading if a further pleading is permitted....
3
§ 256. Correction of named inventor
Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error rose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error.
The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly.
4
Rule 42(b) Separate Trials
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, ... or third-party claim, ... always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by statute of the United States.
5
Rule 12(b)
... If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
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311 So.2d 804 (1975)
Thomas E. FLOWERS, Appellant,
v.
William E. FINLEY et al., Appellees.
No. 74-1102.
District Court of Appeal of Florida, Third District.
April 15, 1975.
Rehearing Denied May 14, 1975.
Barranco, Darlson & Daniel, Miami, for appellant.
Horton, Perse & Ginsberg, Miami, for appellees.
*805 Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
PER CURIAM.
Plaintiff-appellant, Thomas E. Flowers, seeks review of a summary final judgment entered in favor of the defendant-appellees in this action for breach of contract. The controlling question is whether the contract sought to be enforced was an oral agreement within the Statute of Frauds (§ 725.01, Fla. Stat., F.S.A.) in that it was an "... agreement that is not to be performed within the space of one year from the making thereof."
Defendants, desirous of becoming the management organization of Interama, contacted Flowers because of his reputation in the field of management and development. The parties discussed the possibility of the plaintiff lending his name and reputation to the defendants, moving from his residence in California to Florida and becoming an employee of the defendants with respect to their expected management contract with Interama. Subsequently, plaintiff and defendants entered into an oral contract which according to plaintiff provided as follows:
(1) If Flowers would abandon his California interest, commit himself to the FINLEY-GREEN JOINT VENTURE, allow the defendants to use his name, reputation, and commitment in their attempt to obtain the Interama contract, and move to Florida for the purposes of contributing his services, Flowers would receive a 7 1/2% interest in said management organization.
(2) If Flowers would remain in Florida, in the capacity of an employee of the defendants, for a period of five years, contribute his services and expertise to the joint venture, he would receive a salary of $50,000 per year.
Defendant-appellees thereafter entered into a contract with Interama and became the management organization thereof. Thereupon, Flowers abandoned his California interests, moved to Florida and began working for the defendants. Flowers then made several demands for the 7 1/2% interest, but to no avail. Eight months after he moved to Florida, defendants discharged Flowers. Plaintiff-appellant Flowers filed a complaint against the defendants and sought to enforce both provisions, 1 and 2, of the alleged oral contract cited hereinabove. The trial court granted defendants' motion to dismiss the complaint and plaintiff filed an amended complaint wherein he sought only to enforce the 7 1/2% interest in the management organization which had obtained the Interama contract. In response thereto, defendants filed a motion to dismiss on which the trial court reserved ruling. Subsequently, defendants filed an answer and a motion for summary judgment. After hearing oral argument on the motion the trial court entered summary final judgment in favor of the defendants on the primary ground that the contract fell within the Statute of Frauds and was not in writing and, therefore, not enforceable. Plaintiff appeals therefrom. We affirm.
The established rule in Florida is that "when no time is agreed on for the complete performance of the contract, if from the object to be accomplished by it and the surrounding circumstances, it clearly appears that the parties intended it should extend for a longer period than a year, it is within the statute of frauds, though it cannot be said that there is any impossibility preventing its performance within a year." Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937).
Reviewing the record on appeal in a light most favorable to plaintiff and in light of the above rule of law, it is apparent from plaintiff-appellant's own deposition testimony that the 7 1/2% interest was inextricably tied to his employment with the defendants, the duration of which *806 plaintiff testified was from 1972 until at least 1976. Thus, we conclude that the alleged oral contract falls within the Statute of Frauds and is unenforceable. Cf. Manas v. Southern Diversified Industries, Inc., Fla.App. 1967, 193 So.2d 480; Rowland v. Ewell, Fla.App. 1965, 174 So.2d 78.
We also have examined appellant's remaining points on appeal and find them to be without merit. See Canell et al. v. Arcola Housing Corp. et al., Fla. 1953, 65 So.2d 849.
Accordingly, the judgment herein appealed is affirmed.
Affirmed.
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871 F.2d 119
State of Ms.v.Noble*
NO. 88-4687
United States Court of Appeals,Fifth Circuit.
MAR 17, 1989
1
Appeal From: S.D.Miss.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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421 F.3d 981
ARIZONA CARTRIDGE REMANUFACTURERS ASSOCIATION INC., an Arizona not-for-profit corporation, individually, and on behalf of its members and the general public, Plaintiff-Appellant,v.LEXMARK INTERNATIONAL INC., a Delaware corporation, Defendant-Appellee.
No. 03-16987.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 17, 2005.
Filed August 30, 2005.
COPYRIGHT MATERIAL OMITTED Ronald S. Katz, Eugene L. Hahm, Manatt, Phelps & Phillips, LLP, for the plaintiff-appellant.
J. Thomas Rosch, James L. Day, Richard B. Ulmer Jr., Latham & Watkins, for the defendant-appellee.
Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-01-04626-SBA/JL.
Before: THOMAS and FISHER, Circuit Judges, and ROBART, District Judge.*
FISHER, Circuit Judge:
1
Appellant Arizona Cartridge Remanufacturers Association ("ACRA"), an association of wholesalers that sell remanufactured printer cartridges, appeals the grant of summary judgment to cartridge-maker Lexmark on claims that Lexmark engaged in deceptive and unfair business practices in violation of California law. The dispute arises from Lexmark's advertising of its "Prebate" program, under which it gives purchasers an upfront discount in exchange for their agreement to return the empty cartridge to Lexmark for remanufacturing — a form of post-sale restriction on reuse. ACRA claims that Lexmark's advertising and promotional materials mislead customers into thinking the post-sale restriction is enforceable and that they actually receive a discounted price for the special cartridges. We agree with the district court that ACRA has not offered evidence that Lexmark's advertisements constitute deceptive or unfair business practices and affirm the grant of summary judgment in favor of Lexmark.
I.
2
Lexmark, spun off from IBM in 1991, makes and sells laser printers and toner (printer) cartridges. ACRA represents wholesalers that remanufacture emptied Lexmark printer cartridges for reuse. Before 1997, Lexmark did not compete against ACRA's members because it sold only new replacement printer cartridges. In 1997, however, Lexmark began to remanufacture its own cartridges and launched an aggressive new strategy to improve its position in the market for remanufacturing the used cartridges. Most notably, the company introduced its "Prebate" program — a play on the word "rebate" — which gives consumers an upfront discount on printer cartridges. The Prebate cartridges cost consumers on average 30 dollars (or 20 percent) less than a regular cartridge. In return, Lexmark requires the consumer to return the depleted cartridge to Lexmark or its agent.
3
The Prebate cartridge package sets forth the following license agreement on the outside of the package:
4
RETURN EMPTY CARTRIDGE TO LEXMARK FOR REMANUFACTURING AND RECYCLING
5
Please read before opening. Opening of this package or using the patented cartridge inside confirms your acceptance of the following license agreement. The patented cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for remanufacturing and recycling. If you don't accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available1
6
Consumers can opt to buy Lexmark cartridges without the Prebate post-sale restriction, but at the higher price.2
7
Lexmark asserts that it devised the Prebate program to boost its competitive position in the remanufacturing market, to preserve the quality of the product offered consumers and to be environmentally conscious by recycling used cartridges. Lexmark advertises the program in packaging, media and on the company's Web site. Id. It pays a fee to authorized resellers who collect and return empty cartridges.
8
The program has been successful. The company estimates that 50 percent of the cartridges sold are returned as empty cartridges to Lexmark, and cartridge returns have increased by 300 percent since the implementation of the Prebate program. Additionally, from 1997 to 2001, Lexmark's cartridge sales in the United States increased by nearly 100 percent and its sale of printers that use Prebate cartridges increased by 60 percent.
9
ACRA filed this diversity action against Lexmark in federal district court, alleging that several of the company's statements regarding the terms and benefits associated with purchasing a Prebate cartridge are false and violate California's unfair competition laws. Most important for purposes of this appeal, ACRA argued that Lexmark deceptively suggests that the conditions placed on the outside of the Prebate package create an enforceable agreement with consumers to return used cartridges. ACRA also contended that Lexmark misleads consumers by falsely promising that they will save money when purchasing Prebate cartridges, when in fact Lexmark cannot control the price charged by retailers. Finally, ACRA's complaint challenged Lexmark's use of a so-called "lock-out" chip as an unfair business practice.3
10
The district court concluded that Lexmark's Prebate program advertising is not deceptively false. Arizona Cartridge Remanufacturers Ass'n, Inc. v. Lexmark Int'l, Inc., 290 F.Supp.2d 1034, 1049 (N.D.Cal.2003). It found that the company could legally enforce the post-sale restriction under a Federal Circuit decision allowing patent holders to limit the use of their products after sale. Id. at 1042-45 (citing Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 708 (Fed.Cir.1992)). The court further found that Lexmark's restriction created a valid agreement with consumers and that Lexmark's claim of discount pricing accurately reflects its sales practice. Id. at 1045-46. It also found that ACRA failed to establish that Lexmark's use of the lock-out chip amounts to unfair competition. Id. at 1049-50.
II.
11
We review the district court's grant of summary judgment de novo. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001). We must determine, by "viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id.
III.
12
Although this case involves our consideration of important questions of patent and contract law, at its core the dispute between Lexmark and ACRA reduces to state claims of unfair competition and misleading business practices related to Lexmark's advertising. The key issue here is whether Lexmark misleads consumers and engages in unfair competition when it advertises cartridges for sale at a reduced price but with restrictions on their use. ACRA sues under two California laws that provide broad consumer protection for misleading and unfair practices by businesses. California Business and Professions Code § 17500 makes it unlawful for a business to disseminate any statement "which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading...." In turn, California Business and Professions Code § 17200, et seq., prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by" § 17500.4 To state a cause of action under § 17500 for injunctive relief requires a showing that members of the public are likely to be deceived, but does not call for a showing of "[a]ctual deception or confusion caused by misleading statements." Day v. AT & T Corp., 63 Cal.App.4th 325, 74 Cal.Rptr.2d 55, 59 (1998). The law encompasses not just false statements but those statements "which may be accurate on some level, but will nonetheless tend to mislead or deceive.... A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionable under these sections." Id. at 60. The plaintiff has the burden of proving that the challenged advertising is false or misleading to a reasonable consumer. Nat'l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal.App.4th 1336, 133 Cal.Rptr.2d 207, 214 (2003).
13
"Unfair competition" under § 17200 "means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 544 (1999). Section 17200 is not limited to anticompetitive business practices targeted at rivals, "but is equally directed toward the right of the public to protection from fraud and deceit," Comm. On Children's Television, Inc. v. Gen. Foods Corp., 35 Cal.3d 197, 197 Cal.Rptr. 783, 673 P.2d 660, 667 (1983) (internal quotation marks and emphasis omitted) (quoting Barquis v. Merchants Collection Ass'n, 7 Cal.3d 94, 101 Cal.Rptr. 745, 496 P.2d 817, 828 (1972)), and permits "courts to enjoin ongoing wrongful business conduct in whatever context such activity might occur," id. A violation of the false advertising law automatically gives rise to a violation of the unfair competition provision. Id. at 668.
14
ACRA argues that specific statements made by Lexmark in conjunction with its Prebate program — offering cheaper cartridges that come with restrictions on their reuse — violate §§ 17200 and 17500. We address these allegedly offending statements — the focus of ACRA's appeal — in turn.
A. Enforceability of Post-Sale Restriction
15
ACRA contends that Lexmark engages in false advertising and unfair competition by telling consumers they have a legal obligation to honor the post-sale restriction printed on the outside of the cartridge package, when in fact they are not legally compelled to do so. Under ACRA's theory, Lexmark cannot enforce the post-sale conditions and to suggest otherwise violates California's consumer protection laws. To satisfy its burden on summary judgment, ACRA essentially must show that Lexmark has no legal basis for the restriction featured in its advertising. We agree with the district court that ACRA has failed to make such a showing.
1. Patent Law
16
The district court found that Lexmark could condition the use of its patented Prebate cartridges by consumers under the principle articulated by the Federal Circuit in Mallinckrodt, Inc. v. Medipart, Inc., which held that a restriction on a patented good is permissible as long as it is "found to be reasonably within the patent grant, i.e., that it relates to subject matter within the scope of the patent claims." 976 F.2d at 708. A condition is impermissible where "the patentee has ventured beyond the patent grant and into behavior having an anticompetitive effect not justifiable under the rule of reason." Id. (remanding for a determination of whether the patentee's single-use restriction on its medical device was reasonable and within the scope of its patent); see also Monsanto Co. v. McFarling, 302 F.3d 1291, 1298-99 (Fed.Cir.2002) (upholding infringement injunction against farmer who purchased patented seeds under an agreement that the seeds be used for "planting a commercial crop only in a single season," and who then replanted the seeds); B. Braun Med., Inc. v. Abbott Laboratories, 124 F.3d 1419, 1426 (Fed.Cir.1997) (concluding that although typically "an unconditional sale of a patented device exhausts the patentee's right to control the purchaser's use of the device thereafter," this does not hold true where the patentee specifically places restrictions on the sale of the item).
17
Applying the Mallinckrodt principle, the district court determined that Lexmark imposed an enforceable condition on the Prebate printer cartridges because Lexmark's patent rights were not exhausted. Arizona Cartridge, 290 F.Supp.2d at 1045. On appeal, ACRA does not challenge the district court's reliance on Mallinckrodt or the validity of the Federal Circuit's decision, nor does it argue that Lexmark is acting beyond the scope of its patent.5 In fact, ACRA concedes that the otherwise unfettered use of a patented good can be constrained. [Blue Brief at 21]. But to do so, ACRA contends, the patent holder must have a valid contract with the consumers of its product.
2. Contract Law
18
ACRA thus asks us to conclude that Lexmark lacks a valid contract with consumers to limit the post-sale use of the cartridge. California law, adopting the relevant Uniform Commercial Code provisions, establishes that a "contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract." Cal. Com.Code § 2204(1). Additionally, California law provides that an "agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined." Id. at § 2204(2).
19
We agree with the district court that Lexmark has presented sufficient unrebutted evidence to show that it has a facially valid contract with the consumers who buy and open its cartridges. Specifically, the language on the outside of the cartridge package specifies the terms under which a consumer may use the purchased item. The consumer can read the terms and conditions on the box before deciding whether to accept them or whether to opt for the non-Prebate cartridges that are sold without any restrictions.
20
The district court found that the ultimate purchasers of the cartridge — consumers — had notice of the restrictions on use and had a chance to reject the condition before opening the clearly marked cartridge container. Arizona Cartridge, 290 F.Supp.2d at 1044-45. These findings support the conclusion that the consumer accepts the terms placed on usage of the Prebate cartridge by opening the box.6
21
In exchange for agreeing to the restricted use of the cartridge, consumers receive consideration in the form of the price discount.7 The district court explicitly found that "the Prebate is offered at a special price that reflects an exchange for a single-use condition." Arizona Cartridge, 290 F.Supp.2d at 1045. ACRA argues that because Lexmark distributes its cartridges through wholesalers, it has no way to ensure that consumers actually receive the price discount, but offers no factual support for this contention. Lexmark presented evidence that market forces compel wholesalers to pass the discount on to consumers. A regional manager of one supplies retailer said it would be hard, albeit not impossible, for the wholesaler to skim the discount off as profit for itself by passing on only a portion of the discount from Lexmark to the consumer. But he said, "in a very competitive wholesale distribution market, there are too many competitors, really, to be able to do that." Furthermore, the Prebate notice printed on the cartridge informs consumers that they can purchase a regular cartridge without the restriction at the regular price; the notice specifically states that a "regular price cartridge without these terms is available." ACRA has failed to rebut this evidence to create a triable issue of fact.
22
ACRA's argument that no enforceable agreement exists because there is no privity of contract also fails. ACRA cites a California case stating "the general rule that one may not sue upon a contract unless he is a party to that contract." Watson v. Aced, 156 Cal.App.2d 87, 91, 319 P.2d 83 (1957). The privity requirement is met here, because the consumer is a party to the contract with Lexmark. As described above, the contract is formed when the final purchaser opens the cartridge box with notice of the restriction on reuse. ACRA contends, however, that the lack of privity is shown by Lexmark's inability to ensure that consumers will receive the price-reduction benefit of the Prebate program. We have already explained why ACRA has failed to show that consumers do not pay a reduced price. It does not matter that this price discount results from distributors choosing to pass along their savings — the consumer still receives consideration for agreeing to the restriction.
23
We hold that the contract on its face appears to be enforceable based on the district court's findings that consumers (1) have notice of the condition, (2) have a chance to reject the contract on that basis and (3) receive consideration in the form of a reduced price in exchange for the limits placed on reuse of the cartridge.8 The contract permits Lexmark to restrict the use of its patented item and gives Lexmark a legal basis for asserting its ability to enforce its restriction. Therefore, ACRA has not raised a triable issue of fact that Lexmark's advertising statements as to its Prebate program are false, mislead or tend to deceive consumers or that they constitute a form of unfair competition. See Day, 63 Cal.App.4th 325, 74 Cal.Rptr.2d at 59-60.
24
B. Lexmark's Statements as to Price Reduction
25
ACRA contends that Lexmark's advertising is misleading in promising consumers a price reduction for buying a Prebate rather than a regular cartridge, because Lexmark cannot guarantee consumers will pay less for a Prebate cartridge. We have already rejected this argument. See supra Section III.A.2.
26
ACRA further alleges that Lexmark engages in deceptive advertising and unfair competition by suggesting that the price difference between Prebate and non-Prebate cartridges approximates the value of an empty cartridge. According to ACRA, Lexmark wants consumers to believe that the Prebate discount reflects the benefit that accrues to Lexmark by getting an empty cartridge back. We agree with the district court that nothing in the record supports ACRA's claim. Arizona Cartridge, 290 F.Supp.2d at 1047.
C. Use of the Lock-Out Chip
27
ACRA argues that Lexmark's use of the lock-out chip, which prevents consumers from having their Prebate cartridges remanufactured by a different company, is anticompetitive and is intended to preclude competition in the aftermarket. The district court found ACRA's claim that the lock-out chip is a form of unfair competition to be unsupported by facts or legal authority, as do we. Id. at 1050. As discussed above, the district court relied on the Federal Circuit's Mallinckrodt decision to find that Lexmark could restrict the post-sale use of its patented cartridge. ACRA has not challenged the court's determination or alleged that Lexmark is acting beyond the scope of its patent in imposing a condition that it uses the lock-out chip to enforce. Additionally, ACRA has not attempted to show that the use of the lock-out chip — even if designed to keep other companies from remanufacturing Prebate cartridges — impermissibly exceeds the patent grant to produce anticompetitive effects.
28
In sum, ACRA has failed to raise a triable issue of fact as to whether Lexmark's restriction on the use of its patented cartridge is valid and, in turn, whether the lock-out chip is a proper mechanism to ensure compliance with the restriction. We affirm the district court's decision on this issue as well.
IV.
29
We AFFIRM the district court's grant of summary judgment to Lexmark.
Notes:
*
The Honorable James L. Robart, United States District Judge for the Western District of Washington, sitting by designation
1
The packaging when the Prebate program was launched in 1997 contained slightly different language:
IMPORTANT! READ BEFORE OPENING. Opening this package or using the cartridge inside confirms your acceptance to the following license agreement. License Agreement: Patent cartridge inside sold subject to Single Use Only restriction. It is a violation of this agreement and/or it is unlawful to resell, reuse, refill or remanufacture. If you don't agree, return unopened package to point of purchase.
2
According to Lexmark, its post-sale restriction on reusing the Prebate cartridges does not require consumers to return the cartridge at all; it only precludes giving the cartridge to another remanufacturer. The plain language of the contract does not clearly reflect this position. However, the distinction drawn by Lexmark is unnecessary to our resolution of the present case, which is not a direct challenge to the terms of the contract itself
3
The Sixth Circuit described the chip's functioning as a "secret handshake" between the printer and the chip in each cartridgeLexmark Int'l v. Static Control, 387 F.3d 522, 530 (6th Cir.2004) (addressing copyright infringement action against rival chip maker). "If the two values do not match each other, the printer returns an error message and will not operate, blocking consumers from using toner cartridges that Lexmark has not authorized." Id.
4
California's Proposition 64, passed in November 2004, amended the statute to prohibit unaffected plaintiffs from bringing suit on behalf of the general public. Cal. Bus. & Prof. Code § 17204. Under this change, ACRA may lack standing to assert that Lexmark is deceiving consumers or engaging in unfair competitive practices that harm consumers. However, California courts are split on whether this requirement applies retroactively to cases that have not been fully adjudicatedCompare Bivens v. Corel Corp., 24 Cal.Rptr.3d 847 (Cal.Ct.App.2005) (finding plaintiff lacked standing because it was not affected), review granted, 28 Cal.Rptr.3d 3, 110 P.3d 1218 (Cal.2005), with Californians for Disability Rights v. Mervyn's, LLC, 24 Cal.Rptr.3d 301 (Cal.Ct.App.2005) (finding the standing requirement to apply only prospectively), review granted, 28 Cal.Rptr.3d 1, 110 P.3d 1216 (Cal.2005). Because we affirm the district court's grant of summary judgment, we do not address the effect of Proposition 64 on ACRA's claim, if any.
5
The Electronic Frontier Foundation, in its amicus brief, argues thatMallinckrodt was wrongly decided and urges us to reject explicitly the Federal Circuit's reasoning. However, ACRA has not challenged the district court's reliance on or application of Mallinckrodt. Thus, we need not pass on the merits of the Federal Circuit's decision for resolution of the case before us.
6
This case is different from those instances in which a consumer lacks notice of the condition at the time of purchaseSee, e.g., Step-Saver Data Sys. v. Wyse Tech., Inc., 939 F.2d 91, 105 (3d Cir.1991) (treating box-top license as an additional term not incorporated into the parties' contract where the term's addition to the contract would materially alter the agreement and the consumer did not see license until after paying for product). Another variant involves "shrinkwrap licenses" on software, which impose restrictions that a consumer may discover only after opening and installing the software. See e.g., ProCD v. Zeidenberg, 86 F.3d 1447, 1452-53 (7th Cir.1996) (holding that contract included license agreement terms that appeared on screen even though they came after user had purchased, opened and installed software).
7
Lexmark represents that it has not taken legal action against any user for failing to return a cartridge to Lexmark because it "assumes customers will be honest and send cartridges back." To the extent that Lexmark fails to enforce its Prebate policy, a consumer receives the benefit of the bargain through the price reduction without necessarily having to carry through on its obligation to return the cartridges to Lexmark
8
Our holding here does not preclude challenges to the contract that a customer — which, unlike ACRA, is a party to the contract — could raise
| {
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474 F.Supp.2d 1014 (2007)
James J. KAUFMAN, Petitioner,
v.
Richard SCHNEITER (WSPF Warden); Peter Huibregtse (WSPF Deputy Warden); Randall Hepp (JCI Warden); Cari Taylor (JCI Deputy Warden); Cynthia Thorpe, Mary Miller and Ms. T. Gerber (WSPF Business Office), Respondents.
No. 07-C-45-C.
United States District Court, W.D. Wisconsin.
February 15, 2007.
*1015 *1016 *1017 James J. Kaufman, Boscobel, WI, pro se.
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Respondents.
OPINION and ORDER
CRABB, District Judge.
In this civil action for declaratory and monetary relief under 42 U.S.C. § 1983, James Kaufman, a prisoner at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, contends that his constitutional rights have been violated by respondent prison officials in myriad ways. Jurisdiction is present under 28 U.S.C. § 1331.
Petitioner requests leave to proceed n forma pauperis under 28 U.S.C. § 1915. From the financial affidavit and trust fund account statement petitioner has given the court, I conclude that he is unable to prepay any of the fees and costs of starting this lawsuit. Nevertheless, I must still screen his complaint and dismiss any claims in it that are legally frivolous, malicious, fail to state a claim upon which relief may be granted or seek money damages from a respondent who is immune from such relief. 28 U.S.C. § 1915A.
Petitioner will be granted leave to proceed on his claims that (1) respondent Hepp retaliated against him in violation of the First Amendment; (2) respondents Schneiter, Raemsich and Huibregtse violated *1018 his First Amendment rights by upholding a prison policy under which he is denied all publications; (3) respondents Taylor and Raemisch violated his rights under the First Amendment by not delivering his September 5, 2006 letter; (4) respondents Schneiter, Raemisch and Huibregtse violated his right to practice his atheist beliefs by preventing him from ordering publications about atheism in violation of the free exercise clause and RLUIPA; and (5) respondents Schneiter and Raemisch violated his rights under the Eighth Amendment by forcing him to choose between out-of-cell exercise and time spent in the prison law library.
However, petitioner will be denied leave to proceed on his claims that (6) respondent Huibregtse violated his right to practice his atheist beliefs by refusing to provide him with publications about atheism in violation of the free exercise clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA); (7) respondents Taylor and Hepp violated his right to practice his atheist beliefs by refusing to approve a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference, in violation of the free exercise clause and RLUIPA; (8) respondent Thorpe violated his Eighth Amendment right to medical care by denying him timely access to dental treatment; (9) unidentified prison officials violated his rights by retaining him in segregation for the full duration of his period of segregation; (10) respondents Huibregtse and Raemisch violated his right to equal protection by confining only prisoners who are not seriously mentally ill at the Wisconsin Secure Program Facility; (11) respondents Schneiter and Raemisch violated his right of access to the courts by failing to provide "Shepardizing" tools in the Wisconsin Secure Program Facility's law library; and (12) respondents Gerber and Hepp violated his right of access to the courts by denying him postage for his administrative appeals.
From petitioner's complaint, supplemental complaint and the documents attached to each, I draw the following facts, construed liberally in petitioner's favor.
FACTUAL ALLEGATIONS
A. Parties
Petitioner James Kaufman is an inmate at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. Before September 6, 2006, petitioner was incarcerated at the Jackson Correctional Institution in Jackson, Wisconsin.
Respondent Richard Schneiter is Warden of the Wisconsin Secure Program Facility.
Respondent Peter Huibregtse is Deputy Warden of the facility.
Respondent Randall Hepp is Warden of the Jackson Correctional Institution.
Respondent Cari Taylor is Deputy Warden of the Jackson Correctional Institution.
Respondent Cynthia Thorpe is Health Services Supervisor at the Wisconsin Secure Program Facility.
Respondent Ms. T. Gerber works in the Wisconsin Secure Program Facility's Business Office.
(Although named in the caption of the supplemental complaint, respondent Mary Miller is not identified.)
B. Transfer
On April 14, 2006, petitioner filed a federal lawsuit, Kaufman v. Frank, Case No. 06-C-205-C, in which he named respondent Hepp as a defendant. Respondent Hepp was served with a copy of the complaint in that case on July 17, 2006.
On September 6, 2006, petitioner was notified that he would be transferred temporarily *1019 to the Wisconsin Secure Program Facility, a supermaximum security prison. Petitioner had no history of disruptive or violent behavior and did not meet the standards for placement at the facility. Respondent Hepp transferred petitioner in retaliation for his filing Case No. 06-C-205-C.
Petitioner filed a complaint numbered W SPF-2006-27652 challenging his placement at the Wisconsin Secure Program Facility. The complaint was rejected on October 6, 2006.
C. Denial of Publications
When petitioner arrived at the Wisconsin Secure Program Facility, he received a copy of the facility's inmate handbook, dated April 13, 2006. The facility utilizes a two-part behavioral system for inmates. One group of inmates, those in the High Risk Offender Program, is allowed to possess up to ten books and two periodicals in their cells at any given time. The second group of inmates, those in the "step system," is not allowed to possess any publications. Upon arrival at the facility, petitioner was placed in step 3 of the 3 step system.
Petitioner filed an inmate complaint numbered WSPF-2006-26695, challenging the policy of prohibiting all publications to step system inmates. On September 20, 2006, respondent Schneiter dismissed the complaint, stating, "Step inmates are not allowed publications while at WSPF." Petitioner appealed the dismissal. On October 2, 2006, respondent Raemisch denied the appeal.
Among the items petitioner was denied was a copy of the local rules for the United States District Court for the District of Columbia, where petitioner had a pending lawsuit. The bound rules booklet was considered to be a publication and was therefore denied. Petitioner filed an inmate complaint numbered WSPF-2006-31077 regarding the denial of the rules booklet. On November 3, 2006, respondent Huibregtse dismissed the complaint. Although petitioner filed an appeal, respondent Gerber twice refused to mail it, stating that challenges to denied publications did not meet the criteria for obtaining legal loan postage beyond the annual $200 maximum authorized by Wis. Admin. Code § DOC 309.51.
Petitioner was denied several other items on the ground that each was a publication. These included a packet of stapled sheets containing an address list (the subject of inmate complaint WSPF-2006-33818) and a retail catalogue (the subject of inmate complaint WSPF-2006-28156). In each case, petitioner's complaint was dismissed and he was refused postage to send his appeal on the ground that the challenge raised in his complaint did not meet the facility's criteria for obtaining a legal loan extension.
On September 5, 2006, the day before his transfer to the Wisconsin Secure Program Facility, petitioner received a letter from a person named Robert Bernard. Prison officials refused to deliver the letter. Petitioner filed an inmate complaint numbered JCI-2006-25838, challenging prison officials' failure to explain why they did not deliver the letter to him. Respondent Taylor dismissed the complaint, stating that there was no administrative law provision that required prison officials to explain why they did not deliver specific mail items. Petitioner filed an appeal, which respondent Raemsich denied.
D. Religion Claims
1. Study group
On March 31, 2006, petitioner submitted a request to officials at the Jackson Correctional Institution, requesting a "new religious practice": a study group for "inmates who are atheist, freethinkers, humanists, and who had selected `other' or *1020 `no preference' as their religious belief." Petitioner worded his complaint broadly on purpose because the Wisconsin Department of Corrections Religious Preference Form does not give inmates the option of designating themselves as atheists, humanists, or otherwise non-theists. Petitioner's 18-page request included a list of community groups that prison officials could contact for additional information and a list of sample literature related to petitioner's request. Prison officials did not contact any of the persons listed on petitioner's list or read any of the materials he submitted.
Relying on the advice of Jackson Correctional Institution Chaplain Myron Olson, Program Director Danielle LaCost and New Lisbon Correctional Institution Warden Timothy Lundquist, respondent Taylor denied petitioner's request, finding that it was a request for a non-religious activity. Petitioner filed inmate complaint number WSPF-2006-34092, challenging the denial. On November 27, 2006, respondent Hepp dismissed the complaint. Petitioner was denied free postage to mail his appeal on the ground that the challenge raised in his complaint did not meet the facility's criteria for obtaining legal loan postage beyond the annual maximum.
2. Materials on atheism
When petitioner arrived at the Wisconsin Secure Program Facility, he noticed that the prison's library did not contain any books on atheism. Petitioner sent the prison chaplain several requests for atheist reading materials, but received no response. Petitioner filed an inmate complaint numbered WSPF-2006-31875, in which he reiterated his request for books about atheism. Inmate complaint examiner Ellen Ray recommended that the complaint be dismissed for the following reason:
The I[nmate] C[omplaint] E[xaminer] has spoken to Chaplain Overbo. He did contact the organization that inmate Kaufman suggested. However, the organization has not responded to the Chaplain. As such, dismissal is recommended.
Respondent Huibregtse dismissed the complaint on November 3, 2006. Petitioner tried to appeal, but was denied postage because his complaint did not meet the facility's criteria for obtaining a legal loan extension.
Petitioner filed a second complaint numbered WSPF-2006-35380. The inmate complaint examiner reported:
In speaking with Chaplain Overbo, he states, "I gave Inmate Kaufman 9 pages of information on Atheism. This is all the information that was provided to me. There is nothing more that can be done." The I[nmate] C[omplaint] E[xaminer] finds this reasonable and dismissal of the complaint is recommended.
The complaint was dismissed on December 7, 2006. Petitioner was unable to obtain postage to appeal the dismissal.
Petitioner tried to file a third inmate complaint numbered WSPF-2006-36209. On December 22, 2006, respondent Huibregtse rejected that complaint, stating, "This issue was addressed in WSPF-2006-35380 and will not be revisited."[1]
The Wisconsin Secure Program Facility does not provide any publications about atheism and petitioner is not allowed to order any.
*1021 E. Dental Care
Soon after arriving at the Wisconsin Secure Program Facility, petitioner began requesting dental care. One of his teeth was "cutting into his tongue," causing him constant pain and bleeding and making it difficult for him to eat. In response to petitioner's first health services request, prison medical staff told petitioner he had been placed on a dental waiting list. Health staff officials did not respond to any of petitioner's subsequent requests for treatment.
On January 11, 2007, after experiencing four months of constant pain, petitioner filed an inmate complaint numbered WSPF-2007-1201: On January 12, 2007, Cynthia Thorpe, the facility's health services supervisor dismissed the complaint, noting that the dental waiting list "is about a year" and that "while this is unfortunate, there is really nothing that can be done. Plaintiff was directed to contact the dentist if he `beg[an] to experience extreme pain.'" Plaintiff had already done that, to no avail.
Plaintiff appealed the dismissal of his complaint. The appeal was denied on January 26, 2007. Petitioner filed a second grievance on the same subject, inmate complaint WSPF-2007-2062, but that complaint was rejected on January 30, 2007.
Plaintiff continues to experience "varying levels of pain" as well as "discoloration of his teeth and gums" as a result of his dental problems.
F. Out-of-Cell Restrictions
Prisoners are permitted to leave their cells to exercise for a limited amount of time each week. Prison officials count time spent in the law library as out-of-cell exercise time. Petitioner filed an inmate complaint numbered WSPF-2006-28989, challenging the policy. Respondent Schneiter dismissed the complaint and respondent Raemisch denied petitioner's appeal.
G. Segregation Policy
At the Jackson Correctional Institution, when an inmate is disciplined by being placed in segregation for a designated number of days, he is required to serve only 50% of the segregation "sentence" imposed on him. At the Wisconsin Secure Program Facility, prisoners serve 100% of their segregation time. No one told petitioner that different institutions have different segregation policies.
When an inmate at the Jackson Correctional Institute is disciplined with segregation, only those inmate who are not mentally ill will be considered for transfer to the Wisconsin Secure Program Facility. Petitioner does not have mental health problems; therefore, when he was placed in segregation he was considered eligible for transfer to the Wisconsin Secure Program Facility.
Petitioner filed an inmate complaint numbered WSPF-2006-28286, challenging the differential treatment of mentally ill and non-mentally ill inmates with respect to their eligibility for placement in the Wisconsin Secure Program Facility. Respondent Huibregtse dismissed the complaint and respondent Raemisch denied petitioner's appeal.
H. Law Library
The law library at the Wisconsin Secure Program Facility is mainly computerized. A small, rotating collection of research books is also available. After arriving at the facility, petitioner filed inmate complaint number WSPF-2006-29504, in which he complained that none of the printed or electronic materials available in the library permitted him to determine whether any case found in the books or online had been overruled by later court decisions or statutes. On October 23, 2006, respondent Schneiter dismissed the complaint and on November 3, 2006, respondent *1022 Raemisch denied petitioner's appeal.
I. Legal Loan Policy
Repeatedly (as mentioned above), respondent Gerber has refused to mail petitioner's appeals of adverse complaint decisions. The Wisconsin Department of Corrections' Office of Legal Counsel has established guidelines for determining when a prison official should provide an inmate who has exceeded his annual "legal loan" limit free postage for his administrative appeal. The policy statement written by lawyer Kevin Potter, reads as follows:
First, legal loan extensions do not have to be provided for all correspondence to the C[orrections] C[omplaint] E[xaminer]s. For instance, if an inmate is not appealing a decision, but rather just writing to complain about a[] R[eviewing] A[uthority] decision, an O[ffice] O[f the] S[ecretary] decision, or some other matter, we would not be required to provide postage.
Since inmates are required to appeal R[eviewing] A[uthority] decisions to the C[orrections] C[omplaint] E[xaminer]s within 10 days in order to exhaust their administrative remedies and thereby retain their right to initiate civil actions, they may have a right to receive postage to mail all their appeals to the C[orrections] C[omplaint] E[xaminer]s. This right however is not absolute. In order to determine whether they have a right to access the courts you should apply the legal loan guidelines.
If their complaint alleges that their bodily integrity is at stake (i.e. does # 1 of the guidelines apply?) their extension should be approved.
If # 1 does not apply, then look to guideline # 2, i.e., is a fundamental constitutional right of basic human need at stake, or does the case involve a post-conviction remedy for the inmate's underlying criminal conviction? If not, then the inmate has no right to access the courts and extension may be denied. For example, if an inmate is appealing a[] R[eviewing] A[uthority] decision denying a complaint that his soup was cold, that would not involve a constitutional right or basic human need. Under those circumstances, his inability to get a stamp to timely file an appeal to the C[orrections] C[omplaint] E[xaminer]s, thereby preserving his right to file a civil action, would not constitute an infringement of his constitutional right to access to the courts.
If, however, a constitutional right or basic human need is involved, the inmate must be given postage to appeal the R[eviewing] A[uthority] decision to the C[orrections] C[omplaint] E[xaminer]. In this situation, failure to give him the opportunity to appeal to the C [orrections] C [omplaint] E [xaminer] would preclude him from exhausting his administrative remedies and would constitute an infringement of his constitutional right to access the courts.
Although each of petitioner's complaints alleged that one or more of his constitutional rights had been violated by the actions of prison officials, respondent Gerber refused to give petitioner a legal loan extension so he could mail his appeals to the Corrections Complaint Examiner's office in a timely fashion. In a note to petitioner dated December 5, 2006, respondent Gerber stated:
Legal loan extension will not be provided for I[nmate] C[omplaint] E[xaminer] appeals to the C[orrections] C[omplaint] E[xaminer] unless you are in imminent danger of serious physical injury or that your immediate health or safety are [sic] at risk.
Petitioner filed an inmate complaint numbered WSPF-2006-33336, challenging *1023 respondent Gerber's implementation of the department's policy on loan extensions and asserting that she was denying him access to the courts by preventing him from exhausting his administrative options. The complaint was dismissed by respondent Hepp on November 27, 2006. Respondent Gerber refused to post petitioner's appeal.
OPINION
A. Retaliation
To state a retaliation claim, a prisoner must allege that he engaged in constitutionally protected conduct and that his protected actions prompted one or more prison officials to take adverse action against him. Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Johnson v. Kingston, 292 F.Supp.2d 1146, 1153 (W.D.Wis.2003). Petitioner contends that respondent Hepp transferred him to the Wisconsin Secure Program Facility several months after petitioner named Hepp as a defendant in Kaufman v. Frank, Case No. 06-C-205-C.
Inmates have a right of access to the courts. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). If respondent Hepp transferred petitioner to the Wisconsin Secure Program Facility in retaliation for petitioner's decision to name Hepp as a defendant in Case No. 06-C-205-C, then respondent Hepp violated petitioner's First Amendment rights. Whether the lawsuit did motivate Hepp's decision remains to be seen; for now, petitioner has done enough to state a claim under the First Amendment. Therefore, petitioner will be granted leave to proceed on his claim that respondent Hepp transferred him to the Wisconsin Secure Program Facility because petitioner sued him in Case No. 06-C-205-C.
B. Free Speech
As the Supreme Court reiterated recently in Beard v. Banks, ___ U.S. ___, ___- ___, 126 S.Ct. 2572, 2577-2578, 165 L.Ed.2d 697 (2006), "imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment." At the same time, the Constitution sometimes permits greater restriction of such rights in a prison than it would allow elsewhere. Id. When evaluating the reasonableness of a restriction placed on prisoners' constitutional rights, courts apply the standards enunciated in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Overton v. Bazzetta, 539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). Under these standards, "prison regulations are permissible if they are `reasonably related to legitimate penological interests' and are not an `exaggerated response' to such objectives." Beard, 126 S.Ct. at 2578 (citing Turner, 482 U.S. at 87, 107 S.Ct. 2254). In determining whether restrictions meet these requirements, courts "accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them." Overton, 539 U.S. at 132, 123 S.Ct. 2162.
Although the standards governing First Amendment claims in the prison context are highly deferential, deference comes only after defendants have had an opportunity to explain why they have curtailed inmates' rights and why their chosen method for doing so does not constitute an exaggerated response to a perceived penological interest. At the screening stage, the court's focus is on plaintiff's allegations alone and not the possible justifications for defendants' alleged actions. Lindell v. *1024 Frank, 377 F.3d 655, 658 (7th Cir.2004) (reversing dismissal of First Amendment claim at the screening stage where it was "impossible to evaluate the First Amendment implications" of the claim without more information about defendants' reason for curtailing petitioner's rights). So long as petitioner alleges that his constitutional rights have been curtailed and does not plead himself out of court by alleging facts inconsistent with his First Amendment claims, he must be granted leave to proceed. I turn, then, to petitioner's claim that respondents violated his right to free speech by denying him publications and refusing to deliver a letter he received on September 5, 2006.
First, petitioner alleges that the Wisconsin Secure Program Facility has a policy prohibiting inmates in the step program from possessing any publications in their cells. As a result of this rule, petitioner has been prevented from possessing a local rule book from the District Court for the District of Columbia, an address list and a retail catalogue. In the absence of any legitimate reason to the contrary, petitioner has a constitutional right to receive any written material. Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ("[T]he State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought. . . ."). Because petitioner has alleged that prison officials had no reason to prohibit him from possessing written materials, he will be granted leave to proceed on his claim that respondents Schneiter, Raemisch and Huibregtse violated his rights under the First Amendment by enforcing the policy.
Second, petitioner challenges respondents Taylor's and Raemisch's decision to prohibit him from receiving a letter plaintiff sent to him by Robert Bernard on September 5, 2006. According to petitioner, prison officials refused to explain their reason for denying delivery. Because it is not clear whether prison officials were justified in withholding delivery of Bernard's letter, petitioner will be granted leave to proceed on his claim that respondents Taylor and Raemisch violated his rights under the First Amendment by not delivering the September 5, 2006 letter.
C. Free Exercise and RLUIPA
Inmates alleging that government officials have impeded their ability to practice their religious beliefs have two means of recourse: the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1, and the free exercise clause of the First Amendment.
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)-(2), prohibits the government from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution" unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 2114, 161 L.Ed.2d 1020 (2005). RLUIPA is designed to "protect[] institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Id. at 2122.
The protections afforded by RLUIPA apply where:
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would *1025 affect, commerce with foreign nations, among the several States, or with Indian tribes.
42 U.S.C. § 2000cc-1(b). Because the Wisconsin Department of Corrections receives and uses federal grant money for substance abuse treatment programs in its state prison facilities, the requirements of the Act apply to it.
Ultimately, to prove a RLUIPA claim, a plaintiff bears the burden of establishing that defendants placed a substantial burden on the exercise of the plaintiffs religious beliefs. 42 U.S.C. § 2000cc-2(b); Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). Although RLUIPA does not define the term "substantial burden," the Court of Appeals for the Seventh Circuit has held that a substantial burden is "one that necessarily bears a direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable." Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003). Under the statute, a "religious exercise" is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A).
Under RLUIPA, once a prisoner has shown that the actions of government officials have significantly burdened the exercise of the plaintiff's religious beliefs, the burden shifts to defendants to demonstrate that their decision was the least restrictive means of furthering a compelling government interest. See, e.g., Murphy v. Zoning Comm'n of the Town of New Milford, 148 F.Supp.2d 173, 187 (D.Conn.2001). If they can do so, the RLUIPA claim fails.
The protections offered by the First Amendment are more limited than those extended under RLUIPA. Therefore, any claim that fails under RLUIPA will fail inevitably under the First Amendment's more stringent requirements. Although RLUIPA protects "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7), traditional First Amendment jurisprudence protects only "the observation of [] central religious belief[s] or practice[s]." Civil Liberties for Urban Believers, 342 F.3d at 760.
Because the free exercise clause allows states to enforce neutral laws of general applicability even when those laws significantly burden religious practices, Employment Division Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the clause is violated only when the government intentionally targets a particular religion or religious practice, Sasnett v. Sullivan, 91 F.3d 1018, 1020 (7th Cir.1996), vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997).
Petitioner is an atheist. He contends that prison officials have violated his rights under the free exercise clause and RLUIPA in three ways: (1) by refusing to authorize a study group for inmates who have described themselves as atheists, freethinkers, humanists and "other" and those who have identified themselves to prison officials as having no religious preference; (2) by failing to provide petitioner with publications about atheism; and (3) by preventing him from ordering publications about atheism.
Petitioner has not stated a claim under the free exercise clause for one simple reason. He does not allege (nor is it possible to see how he could plausibly do so) that merely reading books about atheism or meeting in a study group with inmates of various philosophical bents constitutes the exercise of his religion, that is "the observation of [] central religious belief[s] or practice[s]" of atheism. Civil *1026 Liberties for Urban Believers, 342 F.3d at 760. Therefore, petitioner must be denied leave to proceed on his claim that respondents Taylor, Hepp and Huibregtse violated his First Amendment free exercise rights by refusing to provide him with materials about atheism or to authorize a study groups for atheist, humanist and freethinking inmates and inmates with no or an "other" religious preference.
With respect to petitioner's claims under RLUIPA, petitioner alleges first that prison officials refused to provide him with written material about atheism, despite his repeated request that they do so. However, petitioner's factual allegations reveal that the prison chaplain did provide him with 12 pages of reading material on atheism, which was all the prison chaplain had in his possession. Although the material was limited in quantity, it was provided to petitioner. More important, prison officials are not required to locate, purchase or provide religious items for inmates. E.g., Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir.2002) ("[T]here is no constitutional entitlement to subsidy."). They are required only to refrain from interfering with inmates' ability to locate, purchase and obtain such materials on their own, at least insofar as obtaining such items is not inconsistent with legitimate prison interests. Because prison officials did not place any burden on petitioner's right to freely practice his religious beliefs by declining to provide him with additional atheist materials, petitioner will be denied leave to proceed on his claim that respondent Huibregtse violated his rights under RLUIPA by failing to provide him with atheist publications.
However, petitioner alleges also that prison officials prevented him from ordering books about atheism. It is not clear how he was prevented from doing so, though two possibilities are apparent. It may be that petitioner was unable to order books about atheism because of his indigency. If so, prison officials have not violated his rights because they are not required to subsidize his religious expression. Nevertheless, it may be that petitioner was unable to order books about atheism because of the facility's ban on publications, discussed in § B, above. If so, the actions of prison officials may have violated his rights under the free exercise clause and RLUIPA as well as the free speech clause of the First Amendment. Although it is not clear that the prison policy banning publications (1) extended to religious materials and (2) was applied to petitioner to prevent him from ordering atheist publications, at this stage in the proceedings, petitioner has done enough to state a claim. Therefore, I will grant him leave to proceed the claim that respondents Schneiter, Raemisch and Huibregtse violated his right to practice his atheist beliefs by preventing him from ordering publications about atheism in violation of the free exercise clause and RLUIPA.
Next, petitioner alleges that prison officials refused to authorize a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference. To put petitioner's claim in context, it is helpful to summarize briefly petitioner's past litigation on the issue of inmate study groups. In Case No. 03-C-027-C, petitioner brought a claim against prison officials contending that they had violated his rights under the free exercise and establishment clauses by refusing to allow him to form a study group for atheist inmates on the same terms the prison authorized study groups for inmates of other faith traditions. This court dismissed petitioner's claims for failure to state a claim upon which relief could be granted. Kaufman v. McCaughtry, 2004 WL 257133 (W.D.Wis. Feb.9, 2004). In *1027 Kaufman v. McCaughtry, 419 F.3d 678, 684 (7th Cir.2005), the court of appeals upheld the decision to dismiss petitioner's free exercise claim because petitioner could not show that the decision to deny him a study group burdened his right to exercise his atheism in any significant way. However, the court of appeals reversed the decision to deny petitioner's establishment clause claim on the ground that petitioner's sincerely held atheist beliefs were entitled to accommodation on the same terms as the accommodations granted to prisoners of other faith traditions.
Nevertheless, the court was quick to note that prison officials are not required to indulge secular interests in the same way they are required to accommodate religious beliefs. Id. ("[N]o one says that a person who wants to form a chess club at the prison is entitled under the Establishment Clause to have the application evaluated as if chess were a religion, no matter how devoted he is to the game."). In this case, petitioner is not challenging the prison's decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates of different religious or philosophical persuasions for the purpose of facilitating inter-religious dialogue. By refusing to authorize a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference, respondents Taylor and Hepp did not violated petitioner's rights under the free exercise clause or RLUIPA. Consequently, petitioner will be denied leave to proceed on his claim that they did.
D. Deliberate Indifference to Medical Needs
"[T]he Eighth Amendment requires the government "`to provide medical care for those whom it is punishing by incarceration.'"" Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir.1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). When prison officials act with deliberate indifference to inmate health or safety, they violate this constitutional mandate. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Court of Appeals for the Seventh Circuit has held that "serious medical needs" are not only conditions that are life threatening or that carry risks of permanent, serious impairment if left untreated, but also those in which the withholding of medical care results in needless pain and suffering. Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir.1997). Dental problems may qualify as serious medical needs. Board v. Farnham, 394 F.3d 469, 480 (7th Cir.2005) ("[D]ental care is one of the most important medical needs of inmates.").
Petitioner alleges that he is in pain from a tooth that is cutting into his tongue. Although he has alerted prison medical staff to his need for dental treatment, they have placed him on a waiting list that will take approximately 12 months to complete and refuse to move him forward on the list. Those allegations are sufficient to state a claim under the Eighth Amendment.
Nevertheless, there is a problem with the timing of petitioner's claim. Under *1028 the 1996 Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prisoners must exhaust administrative remedies before bringing federal civil rights lawsuits. Petitioner's allegations regarding lack of dental treatment were included in his "supplemental complaint" submitted to the court on February 2, 2002. In that supplemental complaint, petitioner alleged that he filed two inmate complaints regarding his lack of dental care: WSPF-2007-1201 and WSPF-2007-2062. Petitioner acknowledged that his appeal of inmate complaint WSPF-2007-1201 was not decided until January 26, 2007, ten days after petitioner filed his complaint in this lawsuit. Petitioner's inmate complaint WSPF-2007-2062 was rejected on January 30, 2007.
Normally, exhaustion of administrative remedies is an affirmative defense that respondents bear the burden of pleading and proving. Jones v. Bock, ___ U.S. ___, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002). However, exhaustion is also "a condition precedent to suit" and unless the exhaustion requirement has been satisfied, district courts lack discretion to decide claims on their merits. Dixon v. Page, 291 F.3d 485, 488 (7th Cir.2002). Therefore, when the existence of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarded as frivolous, the district judge need not wait for an answer before dismissing the suit. Walker, 288 F.3d at 1009-1010.
In this case, it is clear that although petitioner exhausted his administrative remedies, he did so only after he filed suit in this case. In Perez Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir.1999), the Court of Appeals for the Seventh Circuit held that a suit must be dismissed when it is brought by a prisoner before his administrative remedies have been exhausted in full. A district court lacks "discretion to resolve the claim on the merits, even if the prisoner exhausts intra-prison remedies before judgment." Id. In Ford v. Johnson, 362 F.3d 395, 398-99 (7th Cir.2004), the court held that a lawsuit is "brought" within the meaning of the exhaustion statute "when the complaint is tendered to the district clerk."
The only instance in which the court of appeals has allowed a prisoner to exhaust his administrative remedies after beginning his lawsuit is in Barnes v. Briley, 420 F.3d 673 (7th Cir.2005), a case in which the facts pertaining to exhaustion were unique and entirely distinguishable from cases such as this one. In Barnes, the pro se plaintiff originally filed his complaint under the Federal Tort Claims Act. Although Barnes had exhausted his administrative remedies under the act, he had not taken his claim through the prison's inmate complaint system. Subsequently, Barnes was assigned appointed counsel, who determined that plaintiff's claim was properly brought under 42 U.S.C. § 1983 rather than the Tort Claims Act. Counsel initiated the prison grievance process and, once plaintiff had exhausted his administrative remedies, Barnes dismissed his Tort Claims Act claim against the defendant United States and, with leave of the district court, amended his complaint to allege § 1983 claims against entirely new defendants. In that rare instance, the court of appeals held that Barnes had properly exhausted his administrative remedies under the Prison Litigation Reform Act because his amended complaint was "the functional equivalent of filing a new complaint." Barnes, 420 F.3d at 678. The court noted expressly that this was not a situation in which Barnes was attempting to replead improperly exhausted claims in an amended complaint, which would be forbidden under Perez and Ford. Id.
*1029 Had petitioner received the decision dismissing inmate complaint WSPF-2007-1201 before he filed his federal lawsuit, he would have exhausted his administrative remedies as required under § 1997e(a). However, because he filed his lawsuit before receiving a final answer, he failed to exhaust his administrative remedies in the context of this lawsuit, and therefore must be denied leave to proceed on his claim that respondent Thorpe violated his Eighth Amendment right to medical care by denying him timely access to dental treatment.
E. Policies and Procedures
1. Segregation policy
a. Length of segregation
According to petitioner, when an inmate at the Jackson Correctional Facility breaks a rule and incurs disciplinary segregation as a result the infraction, it is the institution's practice to require inmates to serve only half of their assigned segregation time. At the Wisconsin Secure Program Facility, inmates are required to serve 100% of their segregation "sentences." To the extent that petitioner is challenging the method by which the Wisconsin Secure Program Facility measures segregation time, he fails to state a claim.
Although the Jackson Correctional Institution's policy appears to be more lenient than that of the Wisconsin Secure Program Facility, prisons are under no constitutional obligation to implement their rules in any particular way. Petitioner does not allege that he is required to serve more time than he "deserves" in segregation at the facility, only that he is required to serve the full segregation sentence imposed upon him as a result of disciplinary violations.
The prison is not obligated to release petitioner from segregation before he has served the full period to which he was sentenced, even if the Jackson Correctional Institution makes it a practice of releasing its inmates from segregation early. (I note that in 2005, the Jackson Correctional Institution housed 985 inmates in a prison with an operating capacity of 837. Wisconsin Department of Corrections, Jackson Correctional Institution Annual Report FY 2005, at 5. By contrast, in 2005, the Wisconsin Secure Program Facility housed 391 inmates in a prison designed to house 423. Wisconsin Department of Corrections, Wisconsin Secure Program Facility FY 2005 Annual Report, at 4. It is not unreasonable to infer that segregation cell space may be in higher demand at the Jackson Correctional Institution than at the Wisconsin Secure Program Facility.) Because the facts petitioner has alleged do not implicate any constitutional or federal right, he will be denied leave to proceed on his claim that respondents Huibregtse and Raemisch violated his rights by confining him in segregation for the full duration of his segregation sentence.
b. Differential treatment of the non-mentally ill
It appears from petitioner's complaint that he may be contending that his right to equal protection has been violated by the Wisconsin Department of Corrections' policy that prohibits seriously mentally ill inmates from being confined at the Wisconsin Secure Program Facility. If so, his claim is frivolous.
In Jones `El v. Litscher, Case No. 00-C-421-C, a class action lawsuit that challenged the conditions of confinement at the Wisconsin Secure Program Facility, I entered a consent decree on March 28, 2002. Under the terms of that decree, the Wisconsin Department of Corrections agreed not to transfer or house seriously mentally ill inmates at the facility out of concern that doing so might well violate the inmates' right to be free from cruel and *1030 unusual punishment. Petitioner may believe that the facility's oppressive conditions are detrimental to him, too; however, petitioner's right to equal protection would be violated only if there were no rational reason for distinguishing between him and the serious mentally ill inmates who are barred from transfer to the prison. That is simply not the case. Because the prison has a legitimate reason for preventing psychologically vulnerable inmates from being subject to the extreme isolation and deprivations that attend placement at the facility, petitioner has not stated a claim under the Fourteenth Amendment. He will be denied leave to proceed on his claim that respondents Huibregtse and Raemisch violated his right to equal protection by confining only prisoners who are not seriously mentally ill at the Wisconsin Secure Program Facility.
2. Law library
Petitioner complains that the law library at the Wisconsin Secure Program Facility lacks research tools to enable him to determine whether the cases he finds in the library have been overruled or distinguished by later cases (a process commonly known as "Shepardizing"). Petitioner contends that respondents Schneiter and Raemisch violated his right of access to the courts by dismissing the inmate complaint in which he challenged the prison's failure to provide these research tools.
Prisoners have a constitutional right of access to the courts for pursuing post-conviction remedies and for challenging the conditions of their confinement. Lehn v. Holmes, 364 F.3d 862, 865-66 (7th Cir.2004). They do not, however, have a right to "any specific resources such as a law library or a laptop with a CD-ROM drive or a particular type of assistance." Id. at 868. Those "particular types of assistance" include the research tools petitioner is seeking in this lawsuit.
Sensitive to the limitations pro se prisoners face when researching their legal claims, courts engage routinely in independent research to identify the law governing pro se lawsuits. Petitioner's inability to "Shepardize" may be irritating to him, but it unlikely to have a material effect on his ability to litigate his claims in this lawsuit or any other. Because plaintiff has no constitutional right to the legal research tools he seeks, he will be denied leave to proceed on his claim that respondents Schneiter and Raemisch violated his right of access to the courts by dismissing his inmate complaint challenging his inability to "shepardize" case law using the prison law library.
3. "Out of cell" policy
Petitioner alleges that the policies of the Wisconsin Secure Program Facility require him to choose between using his limited out-of-cell time for either exercise or the law library, an allegation supported by the exhaustion documents petitioner has attached to his complaint. Petitioner contends that this policy impermissibly requires him to choose between his constitutional right of access to the courts and his constitutional right of access to adequate opportunity for exercise. Cf. Lehn, 364 F.3d at 865-66 (7th Cir.2004) (prisoners have right of access to courts for pursuing post-conviction remedies and for challenging conditions of confinement); Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir.1988) (approving district court order requiring prison officials to provide inmates with five hours' out-of-cell exercise time).
Petitioner's claim could be interpreted in one of two ways. Either he is contending that his right of access to the courts was violated because he used his limited out-of-cell time to exercise or he is contending that his Eighth Amendment right to be avoid conditions that pose a threat to his *1031 health and safety was violated when he used his limited out-of-cell time to pursue his litigation rather than to exercise.
"The right of access to the courts is the right of an individual, whether free or incarcerated, to obtain guess to the courts without undue interference." Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004). The right of individuals to pursue legal redress for claims that have a reasonable basis in law or fact is protected by the First Amendment right to petition and the Fourteenth Amendment right to substantive due process. Id.; Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir.1993) ("Meaningful access to the courts is a fundamental constitutional grounded in the First Amendment right to petition and the Fifth and Fourteenth Amendment due process clauses."). A prisoner states an access to courts claim when he alleges that he was impeded from initiating a lawsuit or was prevented from litigating a potentially meritorious claim because he was denied access to necessary legal materials. Marshall v. Knight, 445 F.3d 965, 969 (7th Cir.2006). Because petitioner does not allege that the prison's policy prevented him from litigating a nonfrivolous lawsuit, he has not stated an access to courts claim.
However, petitioner has alleged facts suggesting that his Eighth Amendment rights may have been violated. To state a claim under the Eighth Amendment, an inmate must allege the existence of an objectively serious injury to which prison officials were deliberately indifferent. Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir.2001). The Court of Appeals for the Seventh Circuit has stated that a denial of exercise may constitute an objectively serious injury when it is "extreme and prolonged" and "movement is denied to the point that the inmate's health is threatened." Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.1995) (citing Harris v. Fleming, 839 F.2d 1232, 1236 (7th Cir.1988)); see also Anderson v. Romero, 72 F.3d 518, 527-28 (7th Cir.1995); French v. Owens, 777 F.2d 1250, 1255-56 (7th Cir.1985). To the extent that petitioner suggests that he was unable to obtain needed exercise because respondents Schneiter and Raemisch counted his law library time as exercise time, he has stated a claim under the Eighth Amendment.
As the presiding judge in the Jones `El litigation (see supra at § E.1.a.), I am aware that prison officials have agreed recently to amend their out-of-cell policy and plan to no longer count time spent in the law library against out of cell exercise time. Therefore, insofar as petitioner seeks injunctive and declaratory relief on this claim, his Eighth Amendment claim is moot. Nevertheless, if petitioner is able to prove that he was forced to forgo needed exercise in order to spend time in the law library, he may still have a claim for money damages for past violations of his rights. Therefore, I will grant petitioner leave to proceed on his claim that respondents Schneiter and Raemisch violated his rights under the Eighth Amendment by forcing him to choose between out-of-cell exercise and time spent in the prison law library.
4. Legal loan policy
Section DOC 309.51(1) of the Wisconsin Administrative Code provides that inmates may receive loans of up to $200 each year to purchase "paper, photocopy work, or postage" for "correspondence to courts, attorneys, parties in litigation, the inmate complaint review system or the parole board." The loans authorized by DOC § 309.51 are not "funds which are disbursed or credited to an inmate's account to be used as he wishes but rather [are] simultaneous credits and debits . . . for the sole purpose of enabling prisoners to purchase paper, photocopy work, or postage *1032 on credit." Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir.2003) (citing Luedtke v. Bertrand, 32 F.Supp.2d 1074, 1076 (E.D.Wis.1999)). Under the terms of § 309.51(1), "[t]he $200 loan limit may be exceeded with the superintendent's approval if [an] inmate demonstrates an extraordinary need, such as a court order requiring submission of specified documents." Grants of legal loans in excess of $200 annually are known in Department of Corrections parlance as legal loan "extensions."
It is unclear how far prisons must go in helping prisoners exhaust their administrative remedies. On one hand, prisoners have "no constitutional entitlement to subsidy" in prosecuting their civil lawsuits. Id.; Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir.2002). On the other, prisoners have a right of access to the courts, and administrative exhaustion is a mandatory precursor to any federal civil rights lawsuit filed by a prisoner. Woodford v. Ngo, ___ U.S. ___, ___, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006).
If the policy promulgated by the prison is the one petitioner has set forth in his complaint, it is a generous one, erring on the side of caution with respect to the matters for which legal loan extensions will be granted. Its application, however, appears less than consistent. Although the policy states that legal loan extensions are to be granted with respect to complaints that raise constitutional issues, respondent Gerber refused to provide petitioner with a legal loan extension unless he was "in imminent danger of serious physical injury or [his] immediate health or safety [was] at risk." When petitioner tried to challenge respondent Gerber's application of the loan extension policy, respondent Hepp dismissed the complaint.
Regardless what the prison policy may be, or how it is being implemented, petitioner's complaint regarding the manner in which Wisconsin prison officials have exercised their discretion to deny him legal loan extensions does not state a claim of any freestanding constitutional violation. Moreover, because exhaustion is an affirmative defense which respondents bear the burden of proving, Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004), I need not decide at this stage of the proceedings whether petitioner has exhausted his administrative remedies with regard to each claim on which he has been given leave to proceed. However, to the extent that petitioner is anticipating arguments prison officials may raise later in this lawsuit, I note that the Prison Litigation Reform Act requires prisoners to exhaust only those remedies that are made available to them. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006) ("Prison officials may not take unfair advantage of the exhaustion requirement, however, and a remedy becomes 'unavailable' if prison employees do not respond to a properly filed grievance or otherwise use affirmative misconduct to prevent a prisoner from exhausting."); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002); Dale v. Lappin, 376 F.3d 652, 656 (7th Cir.2004). If, by reason of indigence, petitioner was unable to post his grievance appeal and respondents did not provide an alternative means of appealing, it is difficult to see how the appeal process would be "available" to him. Consequently, respondents should be aware that any attempt to dismiss petitioner's claims for failure to exhaust on the ground that he was too poor to post an appeal is unlikely to succeed.
ORDER
IT IS ORDERED that petitioner James Kaufman's request for leave to proceed in forma pauperis is
1. GRANTED with respect to his claims that
*1033 a) respondent Hepp transferred him to the Wisconsin Secure Program Facility because petitioner sued him in Case No. 06-C-205-C;
b) respondents Schneiter, Raemisch and Huibregtse violated his First Amendment rights by upholding a prison policy under which he is denied all publications;
c) respondents Taylor and Raemisch violated his rights under the First Amendment by not delivering his September 5, 2006 letter;
d) respondents Schneiter, Raemisch and Huibregtse violated his right to practice his atheist beliefs by preventing him from ordering publications about atheism in violation of the free exercise clause and RLUIPA; and
e) respondents Schneiter and Raemisch violated his rights under the Eighth Amendment by forcing him to choose between out-of-cell exercise and time spent in the prison law library.
2. DENIED with respect to his claims that
a) respondent Huibregtse violated his right to practice his atheist beliefs by refusing to provide him with publications about atheism in violation of the free exercise clause and RLUIPA;
b) respondents Taylor and Hepp violated his right to practice his atheist beliefs by refusing to approve a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference, in violation of the free exercise clause and RLUIPA;
c) respondent Thorpe violated his Eighth Amendment right to medical care by denying him timely access to dental treatment;
d) unidentified prison officials violated his rights by retaining him in segregation for the full duration of his assigned period of segregation;
e) respondents Huibregtse and Raemisch violated his right to equal protection by confining only prisoners who are not seriously mentally ill at the Wisconsin Secure Program Facility;
f) respondents Schneiter and Raemisch violated his right of access to the courts by failing to provide "Shepardizing" tools in the Wisconsin Secure Program Facility's law library;
g) respondents Gerber and Hepp violated his right of access to the courts by denying him postage for his administrative appeals;
3. Respondents T. Gerber, Mary Miller, and Cynthia Thorpe are DISMISSED from this lawsuit;
4. For the remainder of this lawsuit, petitioner must send respondents Hepp, Huibregtse, Schneiter, Raemisch and Taylor a copy of every paper or document that he files with the court. Once petitioner has learned what lawyer will be representing respondents, he should serve the lawyer directly rather than respondents. The court will disregard any documents submitted by petitioner unless petitioner shows on the court's copy that he has sent a copy to respondents or to respondents' lawyer.
6. Petitioner should keep a copy of all documents for his own files. If petitioner does not have access to a photocopy machine, he may send out identical handwritten or typed copies of his documents.
7. The unpaid balance of petitioner's filing fee is $350.00; petitioner is obligated to pay this amount when he has the means to do so, as described in 28 U.S.C. § 1915(b)(2).
8. Pursuant to an informal service agreement between the Attorney General and this court, copies of petitioner's complaint and this order are being sent today *1034 to the Attorney General for service on respondents.
NOTES
[1] Petitioner alleges that respondent Huibregtse made the decision to reject his complaint. I note, however, that the rejection attached to petitioner's complaint is signed by Kelly Trumm, not respondent Huibregtse.
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558 A.2d 1108 (1988)
Cynthia L. ROCHEN, Janis B. Smith, Gladys M. Harding, Betty L. Langston, Plaintiffs,
v.
Peter S. HUANG, M.D., Defendant.
Superior Court of Delaware, New Castle County.
Submitted: December 9, 1988.
Decided: December 9, 1988.
Roderick R. McKelvie, of Ashby, McKelvie & Geddes, Wilmington, for plaintiffs.
Victor F. Battaglia, and Wayne A. Marvel, of Biggs & Battaglia, Robert J. Katzenstein, of Lassen, Smith, Katzenstein & Furlow, Wilmington, for defendant.
*1109 OPINION
GEBELEIN, Judge.
This case involves a claim by four women, former patients of defendant, that during the course of his treatment he sexually abused them. The defendant has counterclaimed alleging a conspiracy to destroy his reputation. One of the alleged injuries suffered by plaintiffs is "post-traumatic stress disorder". Plaintiffs intend to prove this injury in part through expert testimony provided by a health care specialist, who has already been identified and deposed.
In response to this claim the defendant has moved pursuant to Superior Court Civil Rule 35,[1] for an independent psychiatric examination of each plaintiff. Plaintiffs concede that the nature of their claims make such an examination proper; but ask that the Court order such examinations under specific conditions. In particular, plaintiffs request that the examinations:
1. be conducted in plaintiffs' attorney's office,
2. be conducted in the presence of plaintiffs' attorney,
3. be recorded by electronic methods,
4. be limited to no more than three hours, and
5. be by interview method only.
Plaintiffs also request that upon conclusion of any such examination:
1. the plaintiffs be entitled to immediately photocopy all notes taken by defendant's psychiatrist, and
2. the defendant's psychiatrist be promptly identified in formal discovery answers and be promptly available for deposition.
It is clear that psychiatric examinations are proper in this case and shall be ordered. As to the restrictions sought by plaintiffs, defendant contends that these are unreasonable restrictions that would render the independent examination meaningless or at least significantly imperil the effectiveness of such an examination. In particular, defendant states that the presence of plaintiffs' *1110 attorney would lead to frequent interruptions of the examination with likely objections to questions, etc. Likewise, defendant believes that an arbitrary time cut-off is likely to cause problems with the interview process; and that the use of an attorney's office would lead to disruption of that process. Defendant offers no evidentiary basis for his position, but relies on legal precedent and common sense.
Plaintiffs argue strenuously that the nature of the allegations in this case, their psychological injuries alleged, and indeed, the very nature of psychiatric examination leads to the need for specialized protections during the examinations. Plaintiffs further allege that those examinations can also be used as an informal discovery tool involving, in effect, a wide ranging deposition without the protections afforded in formal discovery. Further, it is alleged that in the extremely contentious atmosphere of this case a record of what is said by the parties could alleviate substantial controversy in the future. Finally, the plaintiffs argue that they have been traumatized by the incidents in question, been traumatized by the legal processes including formal discovery and believe that they may be further traumatized by extensive interrogation by another male physician.
The law with respect to independent medical examinations sought under Rule 35 in Delaware is not extensive.[2] The law involving psychiatric examinations is virtually non-existent. Thus, legal authority from other jurisdictions is helpful.
Plaintiffs rely upon Zabkowicz v. The West Bend Company, E.D.Wisc., 585 F.Supp. 635 (1984) to support their position. In fact, the West Bend Court found:
... I do not believe that the role of the defendants' expert in the truth-seeking process is sufficiently impartial to justify the license sought by the defendants. Accordingly, the plaintiffs, at their option, are entitled to have a third party (including counsel) or a recording device at the examination. Id. at 636.
Defendant relies upon Warrick, supra and other cases cited to support his position that counsel should not be present, indeed that no one should be present other than the examining psychiatrist. In fact, the Warrick court found specifically that:
It has long been the practice in this district and in the state courts of Delaware that an attorney will not be permitted to be present at a physical examination of his client undertaken pursuant to Rule 35 if the other party objects. Warrick, supra at 427.
Likewise, after an analysis of this issue in the light of the intrusive nature of a psychiatric examination vis a vis a physical examination, the District Court for the Eastern District of Pennsylvania found that "plaintiff's counsel shall not be present during the examination". Lowe v. Philadelphia Newspapers, Inc., E.D.Pa., 101 F.R.D. 296, 299 (1983). This Court finds the reasoning of the Lowe Court to be far more persuasive than the conclusory decision in West Bend. In accord, see, Brandenberg v. El Al Israel Airlines, S.D. N.Y., 79 F.R.D. 543 (1978); and, Neumerski v. Califano, E.D.Pa., 513 F.Supp. 1011 (1981). While this Court is fully confident that plaintiffs' counsel would not interrupt the examination of his clients if directed by the Court, the Court is also convinced that any attorney's presence during the intense discussions involved in a psychiatric examination of this sort would be disruptive and intimidating. It could well impair the ability of defendant to obtain a complete and fair psychiatric examination of plaintiffs.
The Court, however, is sensitive to the plaintiffs' concerns that the examination could lead to an informal discovery deposition. Likewise, the emotional state of the plaintiffs justifies some additional safeguards. In this case, as in Lowe and Warrick, the Court will permit plaintiffs to be accompanied by a health care practitioner of their choice and at their expense during *1111 the examinations. This person shall be free to observe the examination, but not participate by objection or interruption.
Likewise, the nature of this proceeding has caused counsel for both sides to aggressively pursue their clients' interests. It is best to avoid later confrontation over exactly what was said by each plaintiff at her deposition. Defendant has not demonstrated any reason why electronic recording of the examinations would impede his expert's ability to conduct a fair and complete examination. Thus, the Court will direct that any examination of plaintiffs by the defense expert be electronically recorded. A copy of the tapes should be made available to plaintiffs as soon as they can be copied.
Since a copy of the actual examination will be available to plaintiffs, their request for immediate copies of defense expert's notes is DENIED.
For the same reasons that presence of a party's attorney may be disruptive to a proper and fair psychiatric examination, the placement of such an examination in plaintiffs' attorney's office could lead to disruption. Defendant has secured a neutral physician's office as a location for such examinations. This is a reasonable location, and the examinations shall be conducted there unless otherwise agreed by the parties.
It is the Court's understanding that all parties assume that the examinations shall be by the interview process and not by written interrogatories.
Finally, the Court is convinced that a three-hour limitation upon the examination is reasonable. No factual basis has been established that such a time limitation would impede defendant's expert in conducting a full and complete examination. If, after the examination has been conducted, good cause can be shown that additional inquiry is necessary, application may be made to the Court.
Upon conclusion of the examinations, plaintiffs are entitled to prompt, formal identification of defendant's expert in a discovery update. Likewise, within a reasonable time defendant should be able to update expert answers to interrogatories.
Should defendant intend to call this expert as a witness at trial, notice shall be given to plaintiffs as soon as possible, but in no event later than December 30, 1988. The expert must be promptly made available for deposition.
Finally, defendant shall make available to plaintiffs' attorney all of the expert's notes and correspondence twenty-four hours prior to the expert's deposition.
IT IS SO ORDERED.
NOTES
[1] Superior Court Civil Rule 35 provides in part:
(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
[2] See, Warrick v. Brode, D.Del., 46 F.R.D. 427 (1969) and Shaw v. Metzger, Del.Super., (unreported), C.A. No. 77C-DE-101, (J. Taylor, February 22, 1985). Metzger involved a panendoscopic examination (a physical test). The Court allowed plaintiff in that case to have present at the test a physician of his choice, at his expense.
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934 F.2d 318Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Terrance Aurthur BROOKS, Petitioner-Appellant,v.Edward W. MURRAY, Director of Virginia Department ofCorrections, Respondent-Appellee.
No. 91-7035.
United States Court of Appeals, Fourth Circuit.
Submitted May 6, 1991.Decided May 29, 1991.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, District Judge. (CA-90-630-R)
Terrance Aurthur Brooks, appellant pro se.
Leah Ann Darron, Assistant Attorney General, Richmond, Va., for appellee.
W.D.Va.
DISMISSED.
Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges.
PER CURIAM:
1
Terrance Brooks seeks to appeal the district court's order denying him relief on his habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254 and the district court's order denying his motion for reconsideration of that order. He claimed that the Virginia Department of Corrections arbitrarily denied him advancement in his good-conduct-time earning level partially because the department relied on an expunged prison charge. We dismiss the appeal.
2
The district court entered its final order denying habeas relief on December 19, 1990. Brooks served his motion for reconsideration on January 5, 1991, and it was filed two days later. The district court denied Brooks's motion for reconsideration on January 22, 1991. Brooks filed a notice of appeal of both the district court's orders on February 1, 1991, and the certificate of service was dated January 31, 1991.
3
The district court has no discretion to extend the 10-day filing deadline for Fed.R.Civ.P. 59 motions. Smith v. Evans, 853 F.2d 155, 157 (3d Cir.1988); Fed.R.Civ.P. 6(b). Brooks's 10-day period expired on January 4, 1991, one day prior to Brooks's service of his motion. See Fed.R.Civ.P. 6(a) (excluding Saturdays, Sundays and legal holidays). Brooks's motion should, therefore, be considered as a Rule 60(b) motion. See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978). Rule 60 motions do not toll the 30-day appeal filing limitation however. Id. Therefore, Brooks's appeal from the December 19, 1990, final order denying habeas relief was not timely noted and this court does not have jurisdiction to consider that appeal. Browder v. Director, Illinois Dep't of Corrections, 434 U.S. 257, 264-65 (1978). Even if we were to consider the district court's order as granting Brooks an extension of the appeal period, we would find that the district court properly denied relief on the merits.
4
Brooks's appeal was noted within 30 days of the denial of his motion for reconsideration. Therefore, we do have jurisdiction to consider that appeal. However, the district court's denial of a Rule 60(b) motion can only be reversed upon a finding of abuse of discretion. United States v. Williams, 674 F.2d 310, 312 (4th Cir.1982). Having reviewed the record, we find that the district court did not abuse its discretion in denying Brooks's motion.
5
For the foregoing reasons, we deny a certificate of probable cause to appeal and dismiss as untimely that portion of the appeal seeking a review of the district court's denial of habeas relief. We also dismiss the portion of the appeal seeking a review of the district court's denial of Brooks's motion for reconsideration. 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.
6
DISMISSED.
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446 F.2d 439
LEO SPEAR CONSTRUCTION COMPANY, Inc., Plaintiff-Appellee,v.The FIDELITY AND CASUALTY COMPANY OF NEW YORK and Brookfield-Baylor, a Joint Venture, Defendants-Appellants.
No. 704.
Docket 35696.
United States Court of Appeals, Second Circuit.
Argued March 19, 1971.
Decided July 1, 1971.
COPYRIGHT MATERIAL OMITTED Jack Hart, New York City (Hart & Hume, New York City, of counsel), for defendants-appellants.
Philip A. Kolvoord, Essex Junction, Vt. (Kolvoord & Overton, Essex Junction, Vt., of counsel), for plaintiff-appellee.
Before MOORE and SMITH, Circuit Judges, and TIMBERS,* District Judge.
MOORE, Circuit Judge:
1
This is an appeal from a judgment awarding plaintiff damages under a quantum meruit theory of recovery in the amount of $90,845 plus interest of $5,910.99 and in addition $50,000 damages under a theory involving tortious interference with business relations.
2
On June 20, 1967, Leo Spear Construction Company (Spear), plaintiff herein, entered into a contract with F. H. McGraw and Company, Inc. (McGraw), the prime contractor in the construction of new student housing at the University of Vermont at Montpelier (the University), wherein Spear as a subcontractor agreed to perform certain work in connection with that construction job for a contract price of $618,000.
3
In December, 1968, McGraw defaulted in the performance of the prime contract and on December 19, the University chose to terminate McGraw's contract effective December 29, 1968. The defendant Fidelity and Casualty Company (F & C) was McGraw's surety and had issued both payment and performance bonds to the University which bonds were drawn on a form of the Department of Housing and Urban Development. Under the terms of this bond, it was to be void if the contractor, McGraw, made prompt payment to the subcontractors and materialmen.
4
At the time of McGraw's default, Spear was faithfully performing its obligations under its subcontract. However, its activities had been thwarted in a number of ways by McGraw. These included McGraw's failure to provide sufficient winter heat, delays from changes in the pier footing, compaction problems and, as a result of dynamiting operations by McGraw, the cracking of various walls and other concrete structures installed by Spear. Besides necessary corrective work, however, Spear had placed 152,000 out of 164,000 bricks which had to be placed in the project or 92.1%, and he had placed 161,000 out of 163,000 cement blocks or 98.77%.
5
On December 9, 1968, Spear and one of its suppliers notified the defendant F & C that they were filing a mechanic's and materialman's lien respectively. Two days later, Spear again wrote F & C, indicating that it stood ready to cooperate with F & C in completing the project, and asking F & C to outline its position regarding the entire situation.
6
On January 2, 1969, the University notified F & C to complete the project pursuant to its performance bond. Thereafter, F & C contracted with Brookfield-Baylor (Brookfield) which was to accomplish this completion. Brookfield was, of course, under no duty to contract with Spear to complete the work covered by Spear's subcontract, and both defendants seem to have been having doubts about allowing Spear to finish the job because of its questionable financial status. F & C had become aware of Spear's financial problems as early as December 12, 1968 when it had learned of an all-monies assignment of funds due Spear under the McGraw contract to the Chittenden Trust Company of Burlington, Vermont. Thus on February 5, Phil Scaglione of F & C informed plaintiff that the contract would not be renewed. However, on February 13, Spear's president, Leo Spear, was told at a conference in New York City that Spear would be allowed to finish the contract and receive its unpaid balance if it could furnish an acceptable bond.
7
A letter of February 28 confirmed the February 13 arrangement but demanded action within ten days. Difficulties then arose over the terms of the bond. The Aetna Insurance Company agreed to write a bond for Spear on condition that F & C rather than Brookfield-Baylor be the only obligee, a condition which F & C stated "may be acceptable" in the February 28 letter, and also on condition that F & C rather than Brookfield be the contractor. F & C insisted that while the bond could be written to it, the contract must be with Brookfield. F & C points to various legal problems it might have faced had it assumed the role of contractor. Several days later plaintiff was informed that it would not be hired to complete the work it had started.
8
On April 2, 1969, after being informed that the subcontract would not be maintained in effect by F & C and Brookfield, Spear's men came onto the site and drove off with a truckload of structural tile. Then they returned and started to load a second truck. However, Brookfield obtained a writ of attachment from the Chittenden District Court in Burlington, Vermont and caused the sheriff to seize and chain the truck. Before this action by the sheriff, Brookfield detained Spear's truck by parking another vehicle in front of the truck and dumping a load of sand in front of it. However, the defendants at no time caused the writ to be entered since the Chittenden District Court found the injunctive remedy to be inappropriate and defendants decided to assert their claim for conversion as a counter-claim in this action. After the determination by the Chittenden Court that no injunction should issue, Spear's representatives went onto the job site only to find that much of the material which had been in the truck had been removed, notwithstanding that the truck and its contents were still under the control of the sheriff pursuant to the writ. Spear also complains that Brookfield used various equipment belonging to Spear in the course of its work, and that in addition to Spear's rights were violated when F & C took these actions since such actions violated an agreement of April 2 to preserve the status quo between Spear and Brookfield-Baylor. Brookfield suggests that this agreement, stated to terminate when the controversy was settled, in fact terminated when the Chittenden suit was terminated.
9
Spear had seven unpaid suppliers on this job, their total claims amounting to $52,173. After commencement of this suit in April, 1969, payment was made by F & C to these suppliers on July 2, 1969. Plaintiff suggests that this payment was unreasonably delayed in that F & C at no time disputed its liability to these materialmen and paid them as per their bills. However, there was some dispute over whether these payments would be made to the materialmen directly or through Spear, since Spear apparently was seeking leverage in an attempt to obtain credit from its materialmen. After these payments were made to the materialmen by joint checks written to the materialmen and Spear, some of the suppliers agreed to loan a percentage of these payments to Spear.
I.
Quantum Meruit Recovery
10
Plaintiff, by an amended complaint, claimed damages under the payment bond on a quantum meruit basis, rather than on the contract. The plaintiff was entitled under Vermont law1 to make this election under the facts and circumstances of this case. Peist v. Richmond, 97 Vt. 97, 122 A. 420 (1923).
11
Thus, plaintiff was entitled to recover in this suit the fair and reasonable value to the defendant F & C of the work performed and the materials furnished. Gilman v. Hall, 11 Vt. 510 (1839); Silos v. Prindle and Prindle, 127 Vt. 91, 237 A.2d 694 (1968). The District Court carefully examined the various items of damage and proof thereof, viewed the construction site in order to make a more accurate judgment as to the proper amount of damages, and concluded that the fair and reasonable value of the work and material supplied by plaintiff was $674,866.92.
12
This figure was arrived at as follows:
direct labor charges incurred
by plaintiff ___________________ $377,393.49
less amount estimated
by district court
attributable to increased
costs due
to McGraw's default
on his contractual
obligations and
amounts attributable
to correctional
work ______________________ 27,393.49
___________
direct labor charges benefiting
defendant F & C $350,000.00
amounts spent by plaintiff
for material for the
benefit of defendant ___________ 222,327.28
20% addition to labor
costs for taxes, insurance,
Social Security,
pension, health and welfare
funds __________________________ 70,000.00
6% of total for overhead
and profit _____________________ 38,539.64
subtotal _____________________ $680,866.92
less correctional work
to be done ________________ 6,000.00
___________
fair value of labor and
material furnished _____________ $674,866.92
13
This figure was then reduced by $300, representing the value of the material removed from the site by the plaintiff for which the defendant F & C paid the materialmen on July 2, 1969 and by $583,721.92, amounts paid to Spear by McGraw under the contract. This resulted in a net amount due plaintiff of $90,845 plus interest of $5,910.99 for a total of $96,755.99. We believe this computation was supported by the evidence, was not clearly erroneous, and represented a proper application of the legal principles involved.
14
Defendants suggest that plaintiff failed to establish a case in quantum meruit because there was no testimony as to the fair and reasonable value of the labor and materials furnished, although Spear testified as to his direct costs, and because there was no indication as to what extent these costs were increased by Spear's own defective workmanship and corresponding need for corrective work and by McGraw's default on his contractual obligations.
15
Leo Spear testified as to his opinion of the "total value" of the work performed, giving the figure of $713,711.44 and justifying it as a cost-plus estimate, supplying the figures for direct costs of materials and labor, together with the 6% figure for overhead and profit. This testimony, together with the Court's examination of the site, provided a sufficient basis for the Court's conclusions with respect to the fair market value of such labor and materials before any set-off. In allowing the inspection of the site to influence its determination of value, the Court acted properly, since in no respect did it ignore the other evidence of value, in this case being only the testimony of Leo Spear. Cf. Eisenlohr v. Kalodner, 145 F.2d 316, 318 (3d Cir. 1944), cert. denied, 325 U.S. 867, 65 S.Ct. 1404, 89 L.Ed. 1986 (1945); In re City of New York, 1 N.Y.2d 428, 154 N.Y.S.2d 1, 136 N.E.2d 478 (1956).
16
As to these items of set-off, Leo Spear candidly presented the only evidence of their existence. He admitted that added expense has been incurred by McGraw's failure to properly coordinate the activities of subcontractors, by its failure to provide heat in the winter, by inadequate compaction and by dynamiting damages caused by McGraw. Spear also admitted that certain corrective work was necessary because of his own fault and gave an estimate of the cost of doing the corrective work yet to be finished. F & C suggests that because Spear did not attach a dollar value to each of these items, and presented no proof thereon, the total damages cannot be ascertained. However, based on Spear's testimony, the District Court was entitled to make a fair determination of the value which should be attributable to these factors, and the Court did this, reducing the direct labor item of damages to $350,000 to reflect increased labor costs due to these factors and subtracting from the total value of labor and material supplied by plaintiff, $6,000 to cover costs of correctional work still to be done.2
17
We conclude that while the evidence did not lend itself to any exact determination of the damages involved, the verdict as rendered was a fair estimate based on the testimony and other evidence and as such we uphold the District Court's determination of damages on the quantum meruit ground of recovery.
II.
Interference With Business Relations
18
On the other hand, we believe that no relief whatever is appropriate against either defendant on the "interference with business relations" theory of recovery. In Pierce Ford Sales v. Ford Motor Company, 299 F.2d 425 (2d Cir.), cert. denied, 371 U.S. 829, 83 S.Ct. 24, 9 L.Ed. 2d 66 (1962), this Court rejected such an attempt by a Vermont automobile dealer who sought damages under this interference-with-business-expectancies theory based on Ford's refusal to allow the plaintiff there to sell its dealership to a third party at a price Ford regarded as excessive thereby reversing the determination of the District Court.
19
Section 766 of the Restatement of Torts (1939) provides in part:
20
"* * * one who, without a privilege to do so, induces or purposely causes a third person not to (b) enter into or continue a business relation with another is liable to the other for the harm thereby caused."
21
In Pierce, this Court held § 766 inapplicable because it found that Ford had a privilege to take steps to protect the financial soundness of its dealers and therefore was justified in refusing to accept a new dealer who was being forced to purchase at an excessive price. In this case, we think that F & C was privileged to withhold payment to Spear's suppliers pending determination as to Spear's status and resolution of the controversy as to who was entitled to possession of the material Spear had left on the construction site. The evidence shows that Spear, because of its financial plight, apparently sought ways to induce its suppliers to extend credit to it by accepting less than full payment from F & C and allowing Spear to have the remainder. As such it resisted attempts by F & C to deal directly with these suppliers. In so doing, Spear contributed at least as much as did F & C to the delay in paying the materialmen.
22
Recovery under § 766(b) based on the delay in paying subcontractors is also inappropriate because there is no proof that F & C acted for the purpose of preventing Spear from dealing with third parties. F & C had no interest in so doing but it did have an interest in effecting payment to the materialmen in such a way as to foreclose any future claims of liability against it by the materialmen and by Spear for the material involved. This was complicated by the fact that some of this material for which payment to the materialmen was delayed was removed by Spear from the construction site. Indeed, it might well be inferred that F & C's conduct in delaying payment was merely to induce Spear to return the material which Spear had removed from the site to "protect ourselves" (A. 168) which presumably was to deter defendants from engaging another subcontractor to finish Spear's part of the job. It is clear then with respect to the delay in payment that F & C acted to protect its legitimate interests and not for the purpose of injuring Spear's relations with third parties.
23
In addition to the "unreasonable delay," the District Court cited two other factors said to constitute interference with business relations. They were: (1) not permitting plaintiff to complete the subcontract, and (2) improperly attaching plaintiff's truck which contained materials Spear sought to remove from the construction site. As to the first factor, defendants were under no duty whatever to continue Spear on the job which it began with McGraw. As to bad faith negotiations, Spear suggests F & C strung him along in order to appease the University which was friendly to Spear. However, the facts indicate that F & C made clear its doubts about the wisdom of continuing Spear on the job from early February, and the only possible basis for an inference of bad faith came in March when it refused to modify its conditions for a bond from Aetna, and may have withheld its final decision not to hire Spear for a few days after such decision was made. Delay for this short period was de minimis and in any event justifiable as an attempt by defendants to guarantee themselves a financially stable subcontractor. Similarly, as to the alleged improper attachment of the plaintiff's truck, and expropriation of materials contained therein, whether or not this was improper or in violation of any agreement between Spear and defendants, there was no showing that this rather trivial incident in any way prevented Spear from dealing with anyone else. Further, the fundamental question of who as between Spear and defendants were properly entitled to possession of the material in question was open to doubt,3 and plaintiff and defendants each clearly acted not in order to prevent the other from dealing with third persons but in order to safeguard its own rights to such materials. Thus, the only remedy for either party was an action in conversion.
24
Furthermore, the third parties with whom plaintiff was prevented from dealing are difficult to ascertain. While the theory of the District Court points to unnamed persons who would have engaged Spear to do work but for the defendants' activities, normally § 766 contemplates third parties whose identities are much less vague and speculative.
25
The proof is virtually undisputed. Upon the record as a whole in our opinion, the standards for the imposition of damages for tortious interference have not been met.
26
In view of the fact that we have found the acts of defendants not to constitute the tort of interference with business relations, it is unnecessary for us to consider the question of the proper allocation of responsibility between the two defendants for the acts alleged.
27
The judgment against F & C in the amount of $90,845 plus $5,910.99 interest is affirmed; that portion of the judgment against F & C and Brookfield-Baylor for $50,000 is reversed.
28
Judgment, therefore, should be entered in favor of Spear in the amount of $90,845 plus interest of $5,910.99. Costs to the appellee.
Notes:
*
Chief Judge, District of Connecticut, sitting by designation
1
In this diversity action brought in the State of Vermont, the law of that State governs our decision herein. Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The defendant F & C suggests that because this bond was drawn on a H.U.D. form, it should be subject to federal law applicable to suits under the Miller Act, since these bonds are "in substance" like Miller Act bonds. While in construing such bonds in accordance with Vermont law, it may be useful to refer to Miller Act cases from other jurisdictions because of the similarity of the forms, we note that even Miller Act cases are decided pursuant to state, rather than federal law. Continental Casualty Company v. Schaefer, 173 F.2d 5 (9th Cir.), cert. denied, 337 U.S. 940, 69 S.Ct. 1517, 93 L.Ed. 1745 (1949)
2
Defendants contend in effect that in the absence of a Vermont case it is reasonable to conclude that Vermont would adopt as a proper interpretation of bonds of this sort the theory that they exclude damages "outside the contract" (damages caused by the defaulting contractor's acts or omissions other than failure to render payments due subcontractors)See L. P. Friestedt Co. v. U. S. Fireproofing Co., 125 F.2d 1010 (10th Cir. 1942); Arthur N. Olive Co. v. United States, 297 F.2d 70 (1st Cir. 1961). However, whether or not this be so, we believe that no damages "outside the contract" were included in the award herein since the quantum meruit recovery was reduced as described in the text. This fact is not changed simply because this reduction was made on the independent basis that such items did not benefit the defendant and therefore were not properly included under a quantum meruit theory.
3
The subcontract between McGraw and Spear provided that it was subject to the conditions of the general contract which in turn provides (§ 25(c)):
"All material and work covered by partial payments made shall thereupon become the sole property of the Owner, but this provision shall not be construed as relieving the Contractor from the sole responsibility for the care and protection of the materials * * *."
In accordance with 9A V.S.A. § 2-401, title to the goods passed to defendants as McGraw's assigns in accordance with the contract between McGraw and Spear. Yet possibly under 9A V.S.A. § 2-702 (1), Spear had the right to withhold delivery except for cash upon McGraw's apparent insolvency, depending on whether Spear's storage of these goods on the construction site constituted a delivery to McGraw. Even if it had been a delivery to McGraw, Spear might have been justitified in removing the goods in order to fulfill his responsibility for "the care and protection of the materials * * *." It is unnecessary for us to resolve this question of who was entitled to possession in order to demonstrate that neither party necessarily acted in bad faith in claiming such right.
As to the agreement between Spear and F & C relating to these materials, it was ambiguous as to when it would expire, and may reasonably have been interpreted by F & C to have expired upon the refusal of the Chittenden Court to grant an injunction, although perhaps the more likely interpretation was that the material would not be touched until that Court had determined the right to title on the merits.
29
TIMBERS, District Judge (concurring in part and dissenting in part):
30
I concur in the judgment of the Court and the able opinion of Judge Moore to the extent that it affirms the judgment of the District Court awarding plaintiff $90,845, plus $5,910.99 interest, on its quantum meruit recovery against Fidelity and Casualty.
31
With deference, however, I am constrained to dissent from the reversal of the District Court's $50,000 judgment against Fidelity and Casualty and Brookfield-Baylor for tortious interference with plaintiff's business relations. My dissent is based on the belief that the majority has failed to credit the findings of the District Court on this issue with the weight to which they are entitled under Rule 52(a), Fed.R.Civ.P.
32
The majority has correctly set forth the widely accepted legal standard for imposing liability based on tortious interference with business relations — in short, action without privilege which causes a third person to refuse to enter into or continue business relations with another, resulting in harm to the latter. Restatement of Torts § 766 (1939). See also 1 Harper & James, The Law Of Torts § 6.11 (1956); 45 Am.Jur.2d Interference § 3 (1969).
33
Judge Oakes' Findings of Fact Nos. 27-45 squarely support his conclusions that "defendant F & C's interference was tortious, being willful and in bad faith" and "[d]efendant Brookfield-Baylor was a knowing participant in such interference although acting under defendant F & C's direction and control and is liable as is any other agent for tortious conduct even though acting for a principal." Since, in my view, Judge Oakes' findings on this issue are based on substantial evidence adduced at an eleven day trial before the late Judge Gibson and Judge Oakes,1 they are not clearly erroneous and should not be set aside.
34
In short, Judge Oakes found, and the evidence shows, that F & C and Brookfield-Baylor (a subsidiary of F & C) caused at least three separate third parties or groups to refuse to enter into or continue business relations with Spear: (1) suppliers and materialmen of Spear; (2) Spear's sources of credit, such as banks; and (3) Spear's bonding company. Moreover, Judge Oakes found, and the evidence shows, that the tortious conduct which directly caused substantial financial harm to Spear consisted of (1) unreasonable delay by defendant F & C in making payment to Spear and Spear's suppliers; (2) not permitting Spear to complete the subcontract and negotiating in bad faith in connection therewith; and (3) improperly instituting attachment proceedings and taking into possession Spear's truck and causing its materials and equipment to be used.
35
While no useful purpose would be served by detailing the substantial evidence which I find supports these findings, brief reference to the undisputed evidence supporting the finding of unreasonable delay on the part of F & C in making payment to Spear and Spear's suppliers will suffice to illustrate the point. Under the terms of its payment bond, F & C was obligated to "promptly make payment to . . . subcontractors . . . furnishing materials for or performing labor in the prosecution of the work provided for in such contract." On December 20, 1968, Spear made formal demand upon F & C for payment to Spear and Spear's materialmen under the bond. Not until July 4, 1969 — more than six months later — did F & C pay $51,492 to Spear and its suppliers and $681 to other creditors of Spear. In the meanwhile, F & C admitted in a letter written on May 28, 1969 that "we've offered what we consider a reasonable settlement — payment of his bills (which we owe under the bond anyhow) and some cash." (Emphasis added.) On the basis of this evidence, Judge Oakes found that "Delay in payment by defendant F & C was unreasonably long. Such delay was intentional, vexatious and in bad faith on the part of defendant F & C."2
36
Similarly, there was substantial evidence that F & C's delay in paying Spear under the bond had injured Spear's credit rating with lending institutions — a matter of consequence to a small company with limited financial resources; that Spear's relations with suppliers and materialmen likewise had been damaged by such delay; and that F & C's intransigence in insisting that Spear's bonding company, Aetna, in writing a bond to secure Spear's completion of the job, must make Brookfield-Baylor the obligee (Brookfield-Baylor being in shaky financial condition because of its $2,000,000 indebtedness to F & C) resulted in a loss of Spear's bonding capacity with Aetna, i. e. a temporary reduction from $2,000,000 to zero, and a subsequent restoration to $1,200,000.
37
All in all, I find Judge Oakes' findings of fact to be clear, comprehensive and precise. In each instance they are buttressed by the evidence. As such, they are not clearly erroneous and should not be set aside. We should not substitute our findings as to the facts, or as to the inferences to be drawn from the facts, for those of the trial judge.3 United States v. 396 Corp., 264 F.2d 704, 709 (2 Cir. 1959) (Gibson, J.); Watson v. Joshua Hendy Corp., 245 F.2d 463, 464 (2 Cir. 1957); Ferguson v. Post, 243 F.2d 144, 145 (2 Cir. 1957); Purer & Company v. Aktiebolaget Addo, 410 F.2d 871, 878 (9 Cir.), cert. denied, 396 U.S. 834 (1969). Cf. Dunlop v. Warmack-Fitts Steel Co., 370 F.2d 876, 879 (8 Cir. 1967).4
38
I would affirm the judgment of the District Court in all respects, including its award of $50,000 for tortious interference with business relations.
Notes:
1
Judge Gibson died after nine days of trial and before deciding the case. The parties stipulated that Judge Oakes could decide the case upon the record made before Judge Gibson and upon such additional evidence as he wished to receive. Judge Oakes took additional evidence on two further days. He also viewed the construction premises in the presence of counsel
2
The case of Pierce Ford Sales, Inc. v. Ford Motor Co., 299 F.2d 425 (2 Cir.), cert. denied 371 U.S. 829 (1962), relied on by the majority, strikes me as being distinguishable in at least this critical respect: there the perpetrator of the tort, Ford Motor Co., clearly was privileged to refuse to accept certain franchises; here F & C was under a contractual dutypromptly to pay all subcontors, suppliers and materialmen and it was not privileged to delay doing so. In Pierce a letter had been written by the injured party, Pierce, to the Ford Motor Co., stating that "because of your (Ford's) legitimate concern with the character, ability and finances of dealers in your products, you have the right to decline, in your discretion, to enter a Sales Agreement with any person who may be willing to agree to purchase our assets." 299 F.2d at 427. In the instant case, payment under the terms of the bond was not discretionary with the surety, nor was the time of payment.
3
Put another way and with commendable succinctness (but allowing for license in paraphrasing), "when two skilled trial judges . . . have passed upon the facts, it should not be the function of an appellate court, as a nonparticipant in the events . . . . , to overrule the factual determinations of those charged with this responsibility." United States v. Manning, 448 F.2d 992, 997 (2 Cir. 1971), (dissenting opinion)
4
What happened in the instant case is both obvious and unfortunate. Appellants, in their brief and in oral argument, totally disregarded the careful findings of fact made by the District Court on the tortious interference issue and their support in the factual record. Instead, appellants engaged in their own selection of facts and inferences, just as though the issues of fact were to be triedde novo in this Court. This is precisely the course of conduct that Rule 52(a) was designed to prohibit. It is for this reason that I most emphatically would reject appellants' disregard of this salutary Rule and would back to the hilt Judge Oakes' faithful conformity to the Rule.
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thomas.dd.cv5-595
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00595-CV
Dan Thomas, Appellant
v.
Texas Department of Criminal Justice, James A. Lynaugh, S. O. Woods, Jr., James A.
Collins, Jack M. Garner, and H. Ray Terry, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 432,548, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING
PER CURIAM
Dan Thomas appeals the trial court's dismissal for want of prosecution. The
appellees have submitted a motion in which they state that Thomas had a pending motion for
summary judgment on file at the time of the dismissal. The appellees contend that "the efficient
administration of justice would best be served [by] reversing the judgment of the court below and
remanding the cause for further consideration."
A review of the transcript pending filing supports the appellees' contention.
Thomas filed a motion for summary judgment on July 6, 1994. The appellees moved to dismiss
for want of prosecution on August 9, 1995. Thomas filed an affidavit in support of his motion
for summary judgment on August 18, 1995. The court dismissed the cause on August 24, 1995.
We dismiss all motions pending in this Court. We grant the appellees' motion.
We reverse the judgment and remand the cause for further proceedings.
Before Chief Justice Carroll, Justices Jones and B. A. Smith
Reversed and Remanded on Appellees' Motion
Filed: December 20, 1995
Do Not Publish
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599 F.2d 1048
Masonv.Hunt
No. 79-8169
United States Court of Appeals, Fourth Circuit
5/29/79
1
E.D.N.C.
AFFIRMED
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248 Cal.App.2d 220 (1967)
56 Cal. Rptr. 435
SHELDON SACKETT, Plaintiff, Cross-defendant and Appellant,
v.
PAUL R. SPINDLER, Defendant, Cross-complainant and Respondent.
Docket No. 23343.
Court of Appeals of California, First District, Division One.
January 30, 1967.
*224 Vincent Hallinan, Carl B. Shapiro, Patrick Sarsfield Hallinan and LeRoy W. Rice for Plaintiff, Cross-defendant and Appellant.
Kahle, Adams & Everton and Douglass M. Adams for Defendant, Cross-complainant and Respondent.
MOLINARI, P.J.
Plaintiff and cross-defendant, Sheldon Sackett, appeals from the judgment of the trial court determining that he take nothing on his complaint for money had and received and further awarding defendant and cross-complainant, Paul Spindler, $34,575.74 plus interest on his cross-complaint against Sackett for breach of contract. Sackett's contentions on appeal are as follows: (1) the evidence reveals no "actionable breach" on his part; (2) damages were incorrectly *225 computed; (3) certain evidence was improperly excluded; (4) the trial court's findings as to mitigation of damages by Spindler are not supported by the evidence; and (5) the trial court erred in awarding interest to Spindler.
The Record
As of July 8, 1961 Spindler was the owner of a majority of the shares of S & S Newspapers, a corporation which, since April 1, 1959, had owned and operated a newspaper in Santa Clara known as the Santa Clara Journal. In addition, Spindler, as president of S & S Newspapers, served as publisher, editor, and general manager of the Journal. On July 8, 1961[1] Spindler entered into a written agreement with Sackett whereby the latter agreed to purchase 6,316 shares of stock in S & S Newspapers, this number representing the total number of shares outstanding. The contract provided for a total purchase price of $85,000 payable as follows: $6,000 on or before July 10, $20,000 on or before July 14, and $59,000 on or before August 15. In addition the agreement obligated Sackett to pay interest at the rate of 6 percent on any unpaid balance. And finally, the contract provided for delivery of the full amount of stock to Sackett free of encumbrances when he made his final payment under the contract.
Sackett paid the initial $6,000 installment on time and made an additional $19,800 payment on July 21. On August 10 Sackett gave Spindler a check for the $59,200 balance due under the contract; however, due to the fact that the account on which this check was drawn contained insufficient funds to cover the check, the check was never paid. Meanwhile, however, Spindler had acquired the stock owned by the minority shareholders of S & S Newspapers, had endorsed the stock certificates, and had given all but 454 shares to Sackett's attorneys to hold in escrow until Sackett had paid Spindler the $59,200 balance due under the contract. However, on September 1, after the $59,200 check had not cleared, Spindler reclaimed the stock certificates held by Sackett's attorney.
Thereafter, on September 12 Spindler received a telegram from Sackett to the effect that the latter "had secured payments our transaction and was ready, willing and eager to transfer them" and that Sackett's new attorney would contact Spindler's attorney. In response to this telegram Spindler, by return telegram, gave Sackett the name of Spindler's attorney. Subsequently, Sackett's attorney contacted Spindler's *226 attorney and arranged a meeting to discuss Sackett's performance of the contract. At this meeting, which was held on September 19 at the office of Sackett's attorney, in response to Sackett's representation that he would be able to pay Spindler the balance due under the contract by September 22, Spindler served Sackett with a notice to the effect that unless the latter paid the $59,200 balance due under the contract plus interest by that date, Spindler would not consider completing the sale and would assess damages for Sackett's breach of the agreement. Also discussed at this meeting was the newspaper's urgent need for working capital. Pursuant to this discussion Sackett on the same date paid Spindler $3,944.26 as an advance for working capital. However, Sackett failed to make any further payments or to communicate with Spindler by September 22, and on that date the latter, by letter addressed to Sackett, again extended the time for Sackett's performance until September 29. Again Sackett failed to tender the amount owing under the contract or to contact Spindler by that date, the next communication between the parties occurring on October 4 in the form of a telegram by which Sackett advised Spindler that Sackett's assets were now free as a result of the fact that his wife's petition to impress a receivership on his assets had been dismissed by the trial court in which divorce proceedings between Sackett and his wife were pending; that he was "ready, eager and willing to proceed to ... consummate all details of our previously settled sale and purchase"; and that the decision of the trial court dismissing his wife's petition for receivership "will clear way shortly for full financing any unpaid balance." Accordingly, Sackett, in this telegram, urged Spindler to have his attorney contact Sackett's attorney "regarding any unfinished details." In response to this telegram Spindler's attorney, on October 5, wrote a letter to Sackett's attorney stating that as a result of Sackett's delay in performing the contract and his unwillingness to consummate the agreement, "there will be no sale and purchase of the stock...." Following this letter Sackett's attorney, on October 6, telephoned Spindler's attorney and offered to pay the balance due under the contract over a period of time through a "liquidating trust." This proposal was rejected by Spindler's attorney, who, however, informed Sackett's attorney at that time that Spindler was still willing to consummate the sale of the stock provided Sackett would pay the balance in cash or its equivalent. No tender or offer of cash or its *227 equivalent was made and Sackett thereafter failed to communicate with Spindler until shortly before the commencement of this action.
Beginning during the period scheduled for Sackett's performance of the contract Spindler found it increasingly difficult to operate the paper at a profit, particularly due to the lack of adequate working capital. In an attempt to remedy this situation Spindler obtained a loan of approximately $4,000 by mortgaging various items of personal property owned by him. In addition, in November, Spindler sold half of his stock in S & S Newspapers for $10,000. Thereafter, in December, in an effort to minimize the cost of operating the newspaper, Spindler converted the paper from a daily to a weekly. Finally, in July 1962 Spindler repurchased for $10,000 the stock which he had sold the previous November and sold the full 6,316 shares for $22,000, which sale netted Spindler $20,680 after payment of brokerage commission.
Breach of Contract
Sackett contends that the evidence reveals no "actionable breach" on his part. The basis of his argument is that despite his failure to tender over half of the purchase price for the stock of S & S Newspapers, his duty to consummate the contract was discharged by Spindler's conduct in two respects, namely, Spindler's "rescission" of the purchase agreement as a result of his reclamation of the stock certificates from Sackett's attorney on September 1 and Spindler's "repudiation" of the contract on October 5.
[1] To begin with, the undisputed evidence shows that of the $85,000 due from Sackett to Spindler under the purchase agreement the total amount which the former paid to the latter up to the time of trial was $29,744.26. Moreover, the purchase agreement reveals that Sackett's promise to pay Spindler $85,000 was an unconditional one once the respective dates on which the payments were due had arrived. Accordingly, since the trial court found that it was not impossible for Sackett to perform the subject contract either by virtue of his illness and hospitalization or his pending divorce litigation, it is clear that his failure to tender the balance due under the contract constituted a breach of the agreement, a breach being defined as an unjustified or unexcused failure to perform all or any part of what is promised in a contract. (Rest., Contracts, §§ 312, 314, pp. 462, 465.) The question remains, therefore, as to whether Sackett's duty to consummate the contract *228 or to respond to Spindler in damages for the former's failure to perform the subject contract was in any way discharged by Spindler's conduct.
With regard first to Spindler's reclaiming of the stock which he had previously delivered to Sackett's attorney to hold in escrow until Sackett paid the balance due under the contract, Sackett argues that under the Uniform Stock Transfer Act (Corp. Code, §§ 2450 through 2486), which was in effect at the time of the transactions involved in this action,[2] Spindler's delivery of the endorsed shares of stock to Sackett's attorney served to transfer title to these shares (Corp. Code, § 2466), and that by subsequently reclaiming the shares of stock Spindler effected a rescission of the purchase agreement and thus barred himself from being able to recover damages for Sackett's breach of the contract.
[2] In response to this contention we note initially that although former Corporations Code, section 2466 provided that "Title to a certificate and to the shares represented thereby can be transferred ... (a) By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby," it is apparent that delivery of such endorsed stock certificates into escrow does not constitute a transfer of title to the stock within the purview of this section. [3] Moreover, even if such delivery did constitute a transfer of title to the stock, a subsequent reclaiming of the stock certificates would not work a rescission of the contract pursuant to which the stock certificates were delivered into escrow. The procedure by which a unilateral rescission of a contract is effected is set forth in Civil Code, section 1691, as follows: "... to effect a rescission a party to the contract must promptly ... (a) Give notice of rescission to the party as to whom he rescinds; and (b) Restore to the other party everything of value which he has received from him under the contract or offer to restore the same upon condition that the other party do likewise...." Spindler did neither of these acts in connection with his withdrawal of the stock certificates from escrow on September 1. Rather, even after that date he continued to affirm the contract and to urge Sackett to perform it. Thus, it is clear that Spindler neither intended to rescind the contract as of September 1 nor took any action *229 which could effect such a rescission.[3] [4a] Secondly, with regard to Sackett's claim that Spindler "repudiated" the contract on October 5, it is clear that the letter which Spindler's attorney wrote to Sackett's attorney on that date informing the latter that as a result of the "many delays" on the part of Sackett "there will be no sale and purchase of the [newspaper] stock" constituted notification to Sackett that Spindler considered his own duty of performance under the contract discharged as a result of Sackett's breach of the contract and that Spindler was thereby terminating the contract and substituting his legal remedies for his contractual rights. Such action was justifiable on Spindler's part if, but only if, Sackett's breach could properly be classified as a total, rather than a partial, breach of the contract. (Rest., Contracts, § 313, p. 464; 4 Corbin on Contracts, § 946, p. 809.) If, on the other hand, Sackett's breach at that time was not total so that Spindler was not entitled to consider himself discharged under the contract, then Spindler's action would constitute an unlawful repudiation of the contract, which would in turn be a total breach of the contract sufficient to discharge Sackett from any further duty to perform the contract. (6 Corbin on Contracts, § 1253, pp. 7, 13-16.)
[5] Whether a breach of contract is total or partial depends upon its materiality. (Rest., Contracts, § 317, p. 471.) In determining the materiality of a failure to fully perform a promise the following factors are to be considered: (1) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated; (2) the extent to which the injured party may be adequately compensated in damages for lack of complete performance; (3) the extent to which the party failing to perform has already partly performed or made preparations for performance; (4) the greater or less hardship on the party failing to perform in terminating the contract; (5) the wilful, negligent, or innocent behavior of the party failing to perform; and (6) the greater or less uncertainty that the party failing to perform will perform the remainder of the contract. (Rest., Contracts, § 275, pp. 402-403.) [4b] In the instant case, although *230 Sackett had paid part of the purchase price for the newspaper stock and although his delay in paying the balance due under the contract could probably be compensated for in damages, we are of the opinion that Spindler was justified in terminating the contract on October 5 on the basis that despite Sackett's "offers" to perform and his assurances to Spindler that he would perform, it was extremely uncertain as to whether in fact Sackett intended to complete the contract. In addition, in light of Spindler's numerous requests of Sackett for the balance due under the contract, the latter's failure to perform could certainly not be characterized as innocent; rather it could be but ascribed to gross negligence or wilful conduct on his part.
The facts in the instant case are similar to those in Coughlin v. Blair, 41 Cal.2d 587 [262 P.2d 305]. There the plaintiffs purchased a lot from the defendants, who, in the deposit receipt evidencing the sale, agreed to install utilities and to pave the road to the subject lot within one year from the date of the agreement. On May 30, 1949, the date that performance was due under the contract, the utilities had not been installed nor had the road been paved. During the following year the plaintiffs wrote several letters to the defendants demanding performance. The defendants, however, did not perform their obligations nor did they repudiate the contract. Ultimately, on May 24, 1950, the work still not having been done, the plaintiffs brought an action for general damages based on the difference in value of the property with and without the performance promised in the contract and for special damages. In affirming the judgment of the trial court insofar as it awarded the plaintiffs general damages, the Supreme Court considered whether, in view of the defendants' assertion that they intended to perform their obligations under the contract in the future, the trial court's award of damages to the plaintiffs allowed them a double recovery, that is, both the improvements and damages for failure to secure the improvements. In this context the Supreme Court pointed out that if the defendants' breach was total, the plaintiffs could recover all their damages, past and prospective, in one action and that a judgment for the plaintiffs in such an action would absolve the defendants from any duty to perform the contract. The Supreme Court then proceeded to consider whether the plaintiffs were entitled to treat the defendants' breach as total as of the date of the commencement of the action and concluded that "Although defendants had not expressly repudiated the contract, *231 their conduct clearly justified plaintiffs' belief that performance was either unlikely or would be forthcoming only when it suited defendants' convenience." Under these circumstances it was held that the plaintiffs were not required to endure that uncertainty or to await the defendants' convenience but were justified in treating the defendants' nonperformance as a total breach of the contract. (Pp. 599-600; see also Gold Min. & Water Co. v. Swinerton, 23 Cal.2d 19, 29-30 [142 P.2d 22]; Walker v. Harbor Business Blocks Co., 181 Cal. 773, 780-781 [186 P. 356].)
Similarly, in the instant case although Sackett at no time repudiated the contract and although he frequently expressed willingness to perform, the evidence was such as to warrant the inference that he did not intend to perform the subject contract. Certainly, the state of the record was such as to justify the conclusion either that it was unlikely that Sackett would tender the balance due or that he would do so at his own convenience. Spindler was not required to endure the uncertainty or to await Sackett's convenience and was therefore justified in treating the latter's nonperformance as a total breach of the contract. Accordingly, we conclude that the letter which Spindler's attorney wrote to Sackett's attorney on October 5 did not constitute an unlawful repudiation of the contract on Spindler's part, was therefore not a breach of the contract by him, and thus did not discharge Sackett's duty to perform the contract or, alternatively, to respond to Spindler in damages.
[6] In any event, even if Spindler was not justified in treating Sackett's breach as total as of October 5, the latter's contention that his duty to perform was discharged by Spindler's repudiation of the contract as of that date is untenable. Since Spindler was not obligated to perform his promise at that time due to Sackett's failure to tender the balance due under the contract, Spindler's repudiation was, at best, anticipatory in nature. Its effect was nullified by Sackett's disregard of it and his treating the contract as still in force as evidenced by his attempt, through his attorney, to arrange an alternative method of financing the balance due under the agreement. (See Cook v. Nordstrand, 83 Cal. App.2d 188, 195 [188 P.2d 282]; Rest., Contracts, § 319, p. 481.) Moreover, Spindler's repudiation was itself retracted by his attorney who, on Spindler's behalf, told Sackett's attorney in the same conversation at which the latter suggested an alternative method of financing that Spindler was still willing to consummate *232 the sale provided Sackett would pay the balance due in cash or its equivalent. Such a retraction constitutes a nullification of the original effectiveness of the repudiation. (Rest., Contracts, § 319, p. 481.)
Measure of Damages
As revealed in the findings of fact in the instant case, the $34,575.74 award of damages to Spindler was calculated by subtracting from the $85,000 contract price all sums of money received by him from Sackett ($29,744.26) and Spindler's net proceeds from his subsequent sale of the stock in July 1962 ($20,680). Sackett contends that the trial court erred in measuring damages by the difference between the contract price for the stock and the price at which Spindler ultimately resold the stock to a third party and that the proper measure of damages in the instant case should instead have been the difference between the price which Sackett agreed to pay for the stock and its value at the date of the breach. In addition, Sackett argues that even assuming the trial court used the correct measure of damages it erred in its computation of damages under this measure. In this regard he contends that since, under his contract with Spindler, he not only agreed to pay Spindler $85,000 but also agreed to assume the liabilities of the newspaper, which at the time of the agreement amounted to $201,849.33, and since under Spindler's sale of the stock in 1962 the buyer was also to assume the newspaper's liabilities, which at that time were approximately $219,844.63, the increase in liabilities during this interval, i.e., $17,995.30, constituted "gross income" to Spindler and "should have been deducted from the judgment as money which had been received by the seller." We concern ourselves initially with the question of what measure of damages was appropriate in the instant case.
Sackett concedes that under the holding of Porter v. Gibson (1944) 25 Cal.2d 506, 511-514 [154 P.2d 703], the provisions of the Uniform Sales Act (Civ. Code, §§ 1721-1800),[4] which was in effect at the time of the subject transaction, are not applicable to a sale of corporate stock.[5] (See also Franck v. J.J. Sugarman-Rudolph Co. (1952) 40 Cal.2d 81, 87-88 [251 P.2d 949].) [7] Accordingly, section 1784 of the Uniform Sales Act providing that the seller's measure of damages for the buyer's breach of a contract to purchase goods is the *233 difference between the contract price and the market price at the time of the breach is not applicable in the instant case. While under the holding of the Porter case the provisions of the Uniform Sales Act are not applicable to a sale of corporate stock, that case, in holding that upon the vendee's breach of a contract to purchase stock when the title to it had passed the vendor may retain the stock for the vendee and sue for the purchase price, applied the law applicable to sales of personal property as that law is articulated in Cuthill v. Peabody (1912) 19 Cal. App. 304 [125 P. 926]. Moreover, since the principles of the Cuthill case, as applied by Porter, were approved in Franck, we deem them applicable here.
The Cuthill case, decided prior to the adoption of the Uniform Sales Act, was an action by the vendor of shares of stock against the vendee to recover the purchase price of the stock, which the vendee had contracted to purchase. In considering whether such a remedy was available to the vendee, the appellate court applied to sales of corporate stock the provisions of the Civil Code and rules of law in cases dealing with personal property, as those rules existed before the adoption of the Sales Act. Based upon those principles, the court in Cuthill concluded that since the title to the stock had passed, the vendor could sue for the purchase price. [8] However, in its opinion, the court articulated the rule that where title to corporate stock has not passed, the vendor, upon the refusal of the vendee to accept the stock and pay the agreed price therefor, cannot sue for the purchase price but is compelled to recoup his loss, if any, solely by an action for damages founded upon a breach of the vendee's contract to accept and pay for the property. (P. 308.) In this regard, Cuthill noted that the applicable remedy, under the general rule, is that "The vendor may treat and keep the property as his own, and recover from the vendee the difference between the contract price and the market price at the time and place of delivery [citations]." (P. 308.)
Cuthill, suggests, by a mere citation of section 3311 which was then in force, and without any discussion of the applicability of that section, that the applicable remedy, upon the vendee's breach of a contract for the purchase of property to which title has not passed, is that provided for in that statute. Section 3311 provided, essentially, that the measure of damages for the buyer's breach of a contract to accept and pay for personal property where title was not vested in the purchaser and the property was not resold in the manner *234 provided by section 3049[6] is the difference between the price which the purchaser agreed to pay and the value of the property to the seller. That section was qualified by section 3353, which provided that the value of the property to a seller is deemed to be the price obtainable therefor in the market nearest to the place at which the property should have been accepted by the buyer and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale.[7] (See Willson v. Gregory, 2 Cal. App. 312, 314 [84 P. 356]; Meyer v. McAllister, 24 Cal. App. 16, 17 [140 P. 42]; Lillie v. Weyl-Zucherman & Co., 45 Cal. App. 607, 610 [188 P. 619]; California P.G. Assn. v. Herspring, 60 Cal. App. 503, 511-512 [213 P. 518]; Hill v. McKay, 94 Cal. 5, 17-18 [29 P. 406]; Hewes v. Germain Fruit Co., 106 Cal. 441, 446-447 [39 P. 853]; and see Royer v. Carter (1951) 37 Cal.2d 544, 549 [233 P.2d 539].)
In 1931 when the Legislature adopted the Uniform Sales Act, it repealed section 3311. Section 3353, however, was retained and still remains in the Civil Code. In Royer, which was an action for breach of a contract to purchase realty, section 3353 was held to be inapplicable to real property on the basis that its language suggests that it is limited to sales of personal property. Accordingly, the Supreme Court concluded that since section 3353 has no application to the sales of real property, the applicable rule in cases involving sales of real property, in the light of the provisions of section 3307,[8] was the general rule which required that damages be computed as of the date of the breach of the agreement to purchase the property. (Pp. 549-550.) In Honey v. Henry's Franchise Leasing Corp. (1966) 64 Cal.2d 801 [52 Cal. Rptr. 18, 415 P.2d 833], a case involving a contract to purchase real and personal property, the Supreme Court, although it sent the case back to the lower court for retrial on the issue of damages because the vendor repossessed some of the property before trial and it was "`impossible to determine from the *235 record whether the value of all the property at the time of the trial was equal to its value at the time of the breach plus any consequential damages that may have been incurred" (p. 805), reiterated the rule of the Royer case and the interpretation which it had, in that case, placed on section 3307. We note, moreover, that while Honey involved both real and personal property, and while its holding turned essentially on the interpretation of section 3307, which applies only to real property, the Supreme Court in that case made no distinction between real and personal property.
The Royer case, moreover, specifically noted that section 3353 was invoked by the courts before the adoption of the Uniform Sales Act to define the term "value to the seller" as used in former section 3311. Although section 3353 is still extant and has now been specifically restricted to cases involving personal property, it is doubtful that it now has any efficacy in view of the repeal of section 3311, which section it was intended to qualify. Since section 3353 comes into play when the "value of property to a seller" is to be utilized in estimating damages, it would have no applicability to personalty which came within the purview of the Uniform Sales Act, the measure of damages for the buyer's breach of a contract to purchase goods under section 1784 being the difference between the contract price and the market price at the time of the breach.[9] We conclude, therefore, that insofar as corporate stock is concerned we are, by virtue of the repeal of section 3311, relegated to the general rule articulated in Cuthill that where title to the stock has not passed, the measure of damages for breach of a contract to accept and pay for the stock is the difference between the contract price and the market price at the time and place of delivery.
[9] It is the general rule, both under the Uniform Sales Act and apart from it, that where the title to goods has not passed to the buyer and the seller has the property in his possession or under his control, the measure of damages upon the buyer's refusal to accept and pay for goods for which there is an available market is, in the absence of special circumstances, the difference between the contract price and the market or current price or value at the time and the place where the goods ought to have been delivered and accepted, or, if no time is fixed for acceptance, then at the time of the refusal to accept. (78 C.J.S. Sales, § 478, p. 137; see Southern *236 Pac. Mill Co. v. Billiwhack etc. Farm (1942) 50 Cal. App.2d 79, 87 [122 P.2d 650].) As used in this measure, the words "market price" and "market value" mean the same thing, that is, the price or value of the article as established or shown by sales in the way of ordinary business; the price at which goods are freely offered in the market to all the world. (Southern Pac. Mill Co. v. Billiwhack etc. Farm, supra, p. 88; Kings County Packing Co. v. Sunland Sales etc. Assn. (1929) 100 Cal. App. 126, 133 [279 P. 1036]; 78 C.J.S., supra, p. 138.)
The above-stated measure of damages, however, does not ordinarily apply when there is no market available at the time and place of performance. In such cases resort may be had to the market value of the goods at the nearest available market; and in the absence of an available market, it has been held that the measure of damages may be the difference between the contract price and the value of the goods as best as can be ascertained, or the difference between the contract price and the best offer that can be obtained for the goods, or the difference between the contract price and the price obtained on a resale, or the actual damages naturally and directly resulting from the buyer's breach. (78 C.J.S., supra, § 478(c) and cases cited; and see Los Angeles Coin-O-Matic Laundries v. Harow, 195 Cal. App.2d 324, 331-335 [15 Cal. Rptr. 693]; and see subd. (2) of former § 1784 and Com. Code, § 2708.) Moreover, even where there is an available market, "The general rule that the measure of damages is the difference between the contract price and the market value is not a hard-and-fast rule, but may be varied if circumstances require it; and it will not be followed where a better method of measuring loss or damages is available under the circumstances." (78 C.J.S., supra, p. 138; see subd. (3) of former § 1784; Com. Code, § 2708; and see Los Angeles Coin-O-Matic Laundries v. Harow, supra.)
[10] It is apparent from the foregoing principles that the measure of damages applied by the trial court in the instant case, namely, the difference between the contract price and the net amount of $20,680 received by Spindler from the resale in July 1962, was proper under the circumstances of this case since the record contains evidence from which the trial court could properly conclude that there was no available market for the stock at the time of Sackett's breach. We refer to the testimony of Joseph Snyder, a newspaper broker, to the effect that because the prospective sale of the newspaper by Spindler to Sackett had been publicized in the local newspaper, the former would have great difficulty making a resale *237 of the newspaper after the latter's failure to consummate the purchase agrement, and that Spindler was in fact extremely fortunate to sell his stock in July 1962. In view of this evidence which tends to show the unavailability of a market for the stock at the time of the breach, we conclude that the trial court was entitled to use the resale price in determining Spindler's damages. Finally, we need not consider whether the trial court, in using the resale price to measure Spindler's damages, should have valued the stock after the breach at $20,000 based upon the sale which Spindler made of one-half of the stock for $10,000 in November 1961. The fact that the trial court used the ultimate net sale price of $20,680 to determine the value of the stock served only to benefit Sackett since a comparison of these two figures show that the value of the stock had increased by the time of the second sale.
[11] Having concluded that the trial court applied the correct measure of damages in the instant case, we consider Sackett's argument that in computing damages under this measure the trial court should have taken into consideration the fact that the liabilities of the newspaper increased some $17,995.30 during the one-year period between the time he agreed to purchase Spindler's stock and the sale of the stock which the latter ultimately effected. This contention is without merit for the reason that both agreements of sale involved an exchange of the stock of S & S Newspapers for a fixed amount of money, in the one case $85,000 and in the other $22,000. The newspaper's liabilities at each of these times, or more properly the relationship of its liabilities to its assets, was obviously a primary factor in determining the amount which each buyer was willing to pay for the stock and was thus reflected in the contract price of the stock at each date. To this extent the increase in the newspaper's liabilities was necessarily and properly considered by the trial court in awarding damages to Spindler. Any separate or additional consideration by the trial court of the increase in liabilities would have been improper.
Evidence As to the Value of the Stock at the Date of Breach
[12] Based upon his contention that the proper measure of damages in the instant case should have been the difference between the contract price for the stock and the value of the stock at the date of breach, Sackett contends that the trial court erred in excluding evidence concerning the value of the stock as of the date of breach. The evidence which Sackett *238 claims the court erroneously excluded was not directed to the value of the stock as of the date of the breach, but, rather, to the value of the business as of October 5. This evidence was sought to be elicited from Spindler on cross-examination. The record discloses that Spindler, when queried as to the value of the business as of October 5, testified that he did not know its value as of that date, but that it was less than the $85,000 which Sackett had agreed to pay. The objection which the trial court sustained was to an argumentative question by Sackett's counsel as to whether Spindler agreed with Snyder's testimony that the value of a weekly newspaper was the annual gross of the business. The objection was sustained on the ground that the question assumed a fact not in evidence on the basis that Snyder had not so testified. Although the colloquy which followed between court and counsel elicited a statement from the court that it deemed the value of the business two or three weeks after July 8, the date of the sale, as immaterial, the record is unclear as to whether the trial court understood that Sackett's counsel was attempting to show by his argumentative question the value of the stock as of the date of the breach. While the subject was not pursued after the colloquy, we cannot say from a perusal of the record that the trial court foreclosed Sackett's counsel from making the showing he now asserts he was precluded from making.
Mitigation of Damages
The trial court specifically found that Spindler "spent all reasonable efforts in minimizing damages to plaintiff ..." and that "The diminution in value of the `S & S Newspapers'' business after September 9, 1961 and the consequent diminution in value of the corporate stock in `S & S Newspapers' after September 9, 1961 was directly caused by the conduct of plaintiff ... in breaching the aforesaid contract of July 8, 1961 and plaintiff['s] ... failure to pay to defendant ... the entire purchase price on or before October 5, 1961." Sackett contends that these findings are not supported by the evidence.
[13] It is well established in California that a party injured by a breach of contract is required to do everything reasonably possible to minimize his own loss and thus reduce the damages for which the other party has become liable. (Valencia v. Shell Oil Co., 23 Cal.2d 840, 844 [147 P.2d 558]; Johnson v. Comptoir etc. D'Exportation, 135 Cal. App.2d 683, 689 [288 P.2d 151]; Hunter v. Croysdill, 169 Cal. App.2d 307, 318 [337 P.2d 174].) From this rule it follows that a person *239 who has been injured by a breach of contract cannot recover damages for detriment which he could have avoided by reasonable effort and without undue expense. (Hunter v. Croysdill, supra; Murphy v. Kelly, 137 Cal. App.2d 21, 31 [289 P.2d 565]; Valencia v. Shell Oil Co., supra.) [14] The question of whether the injured party has acted reasonably in mitigating damages is one of fact. (Jegen v. Berger, 77 Cal. App.2d 1, 11 [174 P.2d 489].) Accordingly, where, as in the instant case, the trial court has made findings of fact to the effect that the injured party has acted reasonably in minimizing his damages, this finding must be upheld on appeal if the record contains any substantial evidence in support of such finding.
[15] In the instant case it is clear that the record contains ample evidence tending to show that Spindler acted reasonably in minimizing damages. Firstly, in order to improve the financial condition of the newspaper he made several efforts to raise working capital for the business. This he did by personally borrowing money for additional capital and by selling one-half of his stock. In addition, he cut costs by changing the newspaper from a daily to a weekly paper. Sackett argues that after Spindler had determined that Sackett had breached the contract, Spindler did not list the newspaper for sale with a broker nor did he take any other steps to sell the newspaper. However, according to Snyder's testimony, such action on the part of Spindler would have been futile since it would be almost impossible for him to sell the newspaper after the publicized sale to Sackett had fallen through. In addition, since the record reveals that the financial condition of the newspaper immediately after Sackett's breach was worse than its financial condition approximately one year later, it is apparent that Spindler's damages would have been greater if he had been able to sell the stock at an earlier date. Finally, Sackett contends that Spindler was required to accept Sackett's so-called "offer" of October 4 in order to minimize damages. However, Sackett's telegram of October 4 contained no tender of performance, but only an expression of willingness to proceed to consummate the sale as soon as the release of his assets from threatened receivership in his divorce action would permit "full financing" of the unpaid balance.
The Propriety of the Interest Award
In addition to awarding Spindler damages in the amount of $34,575.74, the trial court awarded him interest on that sum *240 at 6 percent from September 29 to the date of entry of judgment. Sackett contends that this award of interest was error. With this contention we agree. Section 3287 provides for the inclusion of interest in an award of damages as follows: "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt...." (See Axell v. Axell, 114 Cal. App.2d 248, 255-256 [250 P.2d 182].) [16] In Maurice L. Bein, Inc. v. Housing Authority, 157 Cal. App.2d 670, 686 [321 P.2d 753], the applicable principle is stated as follows: "As a general rule interest in the form of damages is not allowed prior to rendition of judgment on an unliquidated claim or on the amount of a demand which cannot be ascertained either from the face of the contract or by reference to a well-established market value." (See also Tomlinson v. Wander Seed & Bulb Co., 177 Cal. App.2d 462, 476 [2 Cal. Rptr. 310]; see also Axell v. Axell, supra, 256; Lineman v. Schmid, 32 Cal.2d 204, 212 [195 P.2d 408, 4 A.L.R.2d 1380].) [17] These principles preclude Spindler's recovery of interest in the instant case for two reasons. In the first place, since Sackett did not expressly repudiate his agreement with Spindler, the exact date of breach for the purpose of calculating interest is not certain. Secondly, since there was no available market at the time of the breach, the court was required to determine the market price based upon other factors. It follows, therefore, that since Spindler's damages could not be made certain without this determination of market value by the court, interest was not properly awarded to him.
The judgment is modified by deleting therefrom the award of interest from September 29, 1961 to the date of the entry of judgment. As so modified, the judgment is affirmed. Respondent Spindler to recover costs.
Sims, J., and Bray, J.,[*] concurred.
Appellant's petition for a hearing by the Supreme Court was denied March 29, 1967. Sullivan, J., did not participate therein.
NOTES
[1] Unless otherwise indicated, all dates refer to the year 1961.
[2] These sections were repealed as of January 1, 1965.
[3] In this regard, we note the case of Porter v. Gibson, 25 Cal.2d 506, 515-516 [154 P.2d 703], where the seller of stock was allowed to maintain an action against the buyer for the price of the stock after the seller had withdrawn the stock certificates from escrow upon the buyer's failure to pay the balance due under the agreement of purchase. No mention is made in that case of any rescission taking place as a result of the seller's withdrawing the stock certificates from escrow.
[4] All statutory references hereinafter made are to the Civil Code.
[5] The Uniform Sales Act was replaced on January 1, 1963 by the Commercial Code Sales (Com. Code, §§ 2101-2724, incl.).
[6] Section 3049, which was also repealed in 1931, provided for a special lien in favor of a seller of personal property, which lien could be enforced in the same manner as if the property were pledged to him for the price.
[7] Section 3353, enacted in 1872 and never amended, provides as follows: "In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale."
[8] Section 3307 provides that "The detriment caused by the breach of an agreement to purchase an estate in real property, is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him."
[9] This measure of damages is essentially the same as that now contained in Commercial Code, section 2708.
[*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
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