text
stringlengths 1
1.21M
| meta
dict |
|---|---|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6530
GEORGE A. BRANDON,
Plaintiff – Appellant,
v.
MICHAEL WADE, Sheriff,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cv-00509-RAJ-JEB)
Submitted: January 14, 2010 Decided: January 20, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George A. Brandon, Appellant Pro Se. Leslie A. Winneberger,
BEALE, BALFOUR, DAVIDSON & ETHERINGTON, PC, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George A. Brandon appeals the district court’s order
denying relief on his 42 U.S.C. § 1983 (2006) complaint. We
have reviewed the record and find no reversible error.
Accordingly, we deny Brandon’s motion for appointment of counsel
and affirm for the reasons stated by the district court.
Brandon v. Wade, No. 2:07-cv-00509-RAJ-JEB (E.D. Va. filed
Jan. 30, 2009 & entered Feb. 3, 2009). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: DYNAMIC RANDOM ACCESS
MEMORY (DRAM) ANTITRUST
LITIGATION.
CENTERPRISE INTERNATIONAL, LTD,
Plaintiff-Appellant,
v.
MICRON TECHNOLOGY, INC.; MICRON
SEMICONDUCTOR PRODUCTS INC.; No. 06-15636
CRUCIAL TECHNOLOGY, INC.; D.C. Nos.
SAMSUNG ELECTRONICS CO. LTD.; CV-02-01486-PJH
SAMSUNG SEMICONDUCTOR, INC.; CV-05-03026-PJH
MOSEL-VITELIC, INC.; MOSEL-
VITELIC CORPORATION (USA);
ORDER
INFINEON TECHNOLOGIES, AG; AMENDING
INFINEON TECHNOLOGIES NORTH OPINION AND
AMERICA CORP.; HYNIX AMENDED
SEMICONDUCTOR AMERICA, INC.; OPINION
HYNIX SEMICONDUCTOR, INC.;
ELPIDA MEMORY, INC.; ELPIDA
MEMORY, (USA) INC.; NEC
ELECTRONICS AMERICA, INC.; NANYA
TECHNOLOGY CORP.; NANYA
TECHNOLOGY CORP. USA; WINBOND
ELECTRONICS CORP.; WINBOND
ELECTRONICS CORP. AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
14341
14342 IN RE DYNAMIC RANDOM ACCESS MEMORY
Argued and Submitted
March 13, 2008—San Francisco, California
Filed August 14, 2008
Amended October 9, 2008
Before: John T. Noonan, Jr., M. Margaret McKeown and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher;
Concurrence by Judge Noonan
IN RE DYNAMIC RANDOM ACCESS MEMORY 14345
COUNSEL
Henry H. Rossbacher, The Rossbacher Firm; Natalie Finkel-
man Bennett and James C. Shah (argued), Shepherd, Finkel-
man, Miller & Shah, LLC, for plaintiff-appellant Centerprise
International, Ltd.
14346 IN RE DYNAMIC RANDOM ACCESS MEMORY
Michael D. Blechman (argued), Aton Arbisser, Julian Brew
and Tanja Shipman, Kaye Scholer LLP for defendants-
appellees Infineon Technologies, AG and Infineon Technolo-
gies NA Corp.; Joel Sanders, Gibson Dunn & Crutcher LLP,
for defendants-appellees Crucial Technology Inc., Micron
Technology, Inc., Micron Semiconductor Products, Inc.; Wil-
liam Goodman, Topel & Goodman LLC for defendants-
appellees Mosel-Vitelic Inc., and Mosel-Vitelic Corp.; Paul
R. Griffin, Thelen Reid & Priest LLP, for defendant-appellee
NEC Electronics America, Inc.; Steven H. Morrissett, Finne-
gan, Henderson, Farabow, Garrett & Dunner LLP, for
defendants-appellees Winbond Electronics Corp. and Win-
bond Electronics Corp. America; Kenneth O’Rourke,
O’Melveny & Myers LLP, for defendants-appellees Hynix
Semiconductor Inc. and Hynix Semiconductor America, Inc.;
Robert E. Freitas, Orrick, Herrington & Sutcliffe LLP, for
defendants-appellees Nanya Technology Corp. and Nanya
Technology Corp. USA; Harrison J. Frahn, Simpson,
Thatcher & Bartlett LLP for defendants-appellees Elpida
Memory, Inc. and Elpida Memory (USA), Inc.; James L.
McGinnis, Sheppard Mullin Richter & Hampton LLP, for
defendants-appellees Samsung Electronics Co. Ltd. and Sam-
sung Semiconductor Inc.
ORDER
The opinion filed at 538 F.3d 1107, 1110 (9th Cir. Aug. 14,
2008) is amended as follows:
At pg. 1110, insert new footnote 3 after “B. Subject Mat-
ter Jurisdiction”3:
3
The district court granted defendants’ motion to
dismiss, which was premised solely on jurisdictional
grounds. It is unclear, however, whether the FTAIA
is more appropriately viewed as withdrawing juris-
IN RE DYNAMIC RANDOM ACCESS MEMORY 14347
diction from the federal courts when a plaintiff fails
to establish proximate cause or as simply establish-
ing a limited cause of action requiring plaintiffs to
prove proximate cause as an element of the claim.
Compare Empagran S.A. v. F. Hoffman-LaRoche,
Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005)
(affirming dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction), with In re Elevator Anti-
trust Litigation, 502 F.3d 47, 49-50 (2d Cir. 2007)
(affirming dismissal on 12(b)(6) grounds). The
Supreme Court’s decision in Empagran I provides
little guidance because, although the district court
had dismissed under Rule 12(b)(1), the Court did not
explicitly address whether the issue was properly
viewed as one of federal question subject matter
jurisdiction or of a failure to state a claim under fed-
eral law. We decline to resolve the question, because
it was not argued by the parties and in this case the
result and analysis are the same. Accordingly, we
assume without deciding that the district court cor-
rectly dismissed under Rule 12(b)(1).
No petitions for panel rehearing or rehearing en banc will be
considered.
OPINION
FISHER, Circuit Judge:
Plaintiff-appellant Centerprise International, Ltd.
(“Centerprise”), a British computer manufacturer that pur-
chased dynamic random access memory (“DRAM”) outside
of the United States, appeals the district court’s dismissal of
its complaint for lack of subject matter jurisdiction under the
Foreign Trade Antitrust Improvement Act of 1982
(“FTAIA”), 15 U.S.C. § 6a, amending the Sherman Act, 15
14348 IN RE DYNAMIC RANDOM ACCESS MEMORY
U.S.C. § 1-7.1 Defendants-appellees are U.S. and foreign
manufacturers and sellers of DRAM, a type of high-density
memory used in personal computers and other electronic
devices. We affirm.
I. Background
Centerprise is a British corporation that uses DRAM in the
manufacture of its computers. DRAM is a common type of
memory chip that is sold around the world. According to Cen-
terprise, DRAM is “a readily transportable commodity prod-
uct with multiple firms offering essentially identical parts.”
Centerprise purchased DRAM outside of the United States
from the defendants, various memory companies.
Centerprise brought this antitrust class action in May 2005
on behalf of itself and all others similarly situated, pursuant
to §§ 4(a), 12 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 22
and 26, seeking injunctive relief and damages, premised on
defendants’ alleged violations of federal antitrust laws,
including § 1 of the Sherman Act.2 Centerprise alleged that
the defendants engaged in a global conspiracy to fix DRAM
prices, raising the price of DRAM to customers in both the
United States and foreign countries. Specifically, Centerprise
asserted that the domestic effect of the defendants’ anticom-
petitive conduct — higher DRAM prices in the United States
— gave rise to its foreign injury of having to pay higher
DRAM prices abroad because the defendants could not have
raised prices worldwide and maintained their global price-
fixing arrangement without fixing the DRAM prices in the
United States.
1
Hereinafter all statutory provisions cited, unless otherwise indicated,
refer to Title 15 of the United States Code.
2
Centerprise defined the class as “[a]ll individuals and entities located
outside of the United States who, during the period from approximately
July 1, 1999 through at least June 20, 2002 (the ‘Class Period’), purchased
DRAM directly from defendants, any subsidiaries or affiliates thereof.”
IN RE DYNAMIC RANDOM ACCESS MEMORY 14349
The district court dismissed the complaint with prejudice
for lack of subject matter jurisdiction under the FTAIA. Rely-
ing on the Supreme Court’s decision in F. Hoffmann-La
Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004)
(“Empagran I”), and the D.C. Circuit’s decision in that case
on remand, the district court held that Centerprise had not met
the jurisdictional prerequisites under the FTAIA because it
had not sufficiently alleged that its foreign injury was directly
linked to the domestic effect of higher U.S. prices for DRAM.
The district court also denied Centerprise leave to amend its
complaint as futile because its proposed amendments did not
substantively change its theory of recovery. Centerprise
timely appealed.
II. Discussion
A. Legal Standards
We review de novo the district court’s dismissal for lack of
subject matter jurisdiction. See United States v. LSL Biotech-
nologies, 379 F.3d 672, 677 (9th Cir. 2004). The party assert-
ing jurisdiction bears the burden of establishing subject matter
jurisdiction on a motion to dismiss for lack of subject matter
jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994); see also Stock W., Inc. v. Confeder-
ated Tribes of the Colville Reservation, 873 F.2d 1221, 1225
(9th Cir. 1989). Dismissal for lack of subject matter jurisdic-
tion is appropriate if the complaint, considered in its entirety,
on its face fails to allege facts sufficient to establish subject
matter jurisdiction. See Love v. United States, 915 F.2d 1242,
1245 (9th Cir. 1990).
B. Subject Matter Jurisdiction3
3
The district court granted defendants’ motion to dismiss, which was
premised solely on jurisdictional grounds. It is unclear, however, whether
the FTAIA is more appropriately viewed as withdrawing jurisdiction from
the federal courts when a plaintiff fails to establish proximate cause or as
14350 IN RE DYNAMIC RANDOM ACCESS MEMORY
[1] In 1982, Congress responded to concerns regarding the
scope of the broad jurisdictional language in the Sherman Act
by enacting the FTAIA.4 See Phillip E. Areeda & Herbert
Hovenkamp, Antitrust Law ¶ 272i, pp. 286-87 (3d ed. 2006)
(hereinafter “Areeda & Hovenkamp”). The FTAIA amends
the Sherman Act and “excludes from [its] reach much anti-
competitive conduct that causes only foreign injury.” Empa-
gran I, 542 U.S. at 158. It does this by establishing a general
rule that the Sherman Act “shall not apply to conduct involv-
ing trade or commerce . . . with foreign nations.” § 6a. It then
provides an exception to this general rule, making the Sher-
man Act applicable if foreign conduct “(1) has a ‘direct, sub-
stantial, and reasonably foreseeable effect’ on domestic
commerce, and (2) ‘such effect gives rise to a [Sherman Act]
claim.’ ” Empagran I, 542 U.S. at 159 (quoting § 6a) (alter-
ation in Empagran I).5 This exception is known as the “do-
simply establishing a limited cause of action requiring plaintiffs to prove
proximate cause as an element of the claim. Compare Empagran S.A. v.
F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir.
2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter
jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50
(2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme
Court’s decision in Empagran I provides little guidance because, although
the district court had dismissed under Rule 12(b)(1), the Court did not
explicitly address whether the issue was properly viewed as one of federal
question subject matter jurisdiction or of a failure to state a claim under
federal law. We decline to resolve the question, because it was not argued
by the parties and in this case the result and analysis are the same. Accord-
ingly, we assume without deciding that the district court correctly dis-
missed under Rule 12(b)(1).
4
Section 1 of the Sherman Act prohibits “[e]very contract, combination
in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations . . .” 15
U.S.C. § 1.
5
The FTAIA states:
Sections 1 to 7 of [the Sherman Act] shall not apply to conduct
involving trade or commerce (other than import trade or import
commerce) with foreign nations unless —
IN RE DYNAMIC RANDOM ACCESS MEMORY 14351
mestic injury exception” of the FTAIA. The Supreme Court
has described the FTAIA’s language as:
initially lay[ing] down a general rule placing all
(nonimport) activity involving foreign commerce
outside the Sherman Act’s reach. It then brings such
conduct back within the Sherman Act’s reach pro-
vided that the conduct both (1) sufficiently affects
American commerce, i.e., it has a “direct, substan-
tial, and reasonably foreseeable effect” on American
domestic, import or (certain) export commerce, and
(2) has an effect of a kind that antitrust law considers
harmful, i.e., the “effect” must “giv[e] rise to a
[Sherman Act] claim.”
Id. at 162.
[2] The FTAIA thus clarifies that U.S. antitrust laws con-
cern the protection of “American consumers and American
exporters, not foreign consumers or producers.” Areeda &
Hovenkamp at ¶ 272i, pp. 287. For the Sherman Act to apply,
the effect on U.S. commerce or American interests engaged
in foreign commerce must be direct, substantial and reason-
ably foreseeable — not minor impacts — and it must “giv[e]
rise” to the antitrust claim. See id.
(1) such conduct has a direct, substantial, and reasonably fore-
seeable effect —
(A) on trade or commerce which is not trade or commerce
with foreign nations, or on import trade or import commerce
with foreign nations; or
(B) on export trade or export commerce with foreign nations,
of a person engaged in such trade or commerce in the United
States; and
(2) such effect gives rise to a claim under the provisions of sec-
tions 1 to 7 of this title, other than this section. § 6a.
14352 IN RE DYNAMIC RANDOM ACCESS MEMORY
[3] In dismissing Centerprise’s action, the district court
concluded that Centerprise had sufficiently alleged that defen-
dants’ conduct had a “direct, substantial, and reasonably fore-
seeable” effect on U.S. domestic commerce, the first prong of
the domestic injury exception, but did not sufficiently allege
the second prong, that such U.S. domestic effect “g[ave] rise
to” Centerprise’s foreign injury under § 6a of the FTAIA.
Only the district court’s conclusion with respect to the second
prong of the domestic injury exception is at issue in this appeal.6
[4] The controlling precedent on the FTAIA domestic
injury exception is the Supreme Court’s opinion in Empagran
I. There the Supreme Court addressed the exception in the
context of an antitrust class action brought by foreign pur-
chasers of vitamins who alleged a global price-fixing conspir-
acy that led to increased prices in the United States, and
independently led to increased prices for vitamins in other
countries. 542 U.S. 155. The Court stated the issue as whether
the Sherman Act reaches “anti-competitive price-fixing activ-
ity that is in significant part foreign, that causes some domes-
tic antitrust injury, and that independently causes separate
foreign injury.” Id. at 158.
[5] After considering principles of comity and the history
of the Sherman Act and the FTAIA, the Court concluded that
“Congress would not have intended the FTAIA’s exception to
bring independently caused foreign injury within the Sherman
Act’s reach.” See id. at 173. Thus the foreign purchasers who
bought vitamins outside of the United States could not bring
a claim under the Sherman Act “where [their] claim rests
solely on the independent foreign harm.” Id. at 159. The
Court remanded the case to the D.C. Circuit to consider the
plaintiffs’ alternative argument that the foreign injury was
6
We focus on whether the exception to the FTAIA’s general rule
excluding application of the Sherman Act is available because it is undis-
puted that the alleged price-fixing conduct falls within the FTAIA’s gen-
eral rule because the price-fixing activity constitutes “conduct involving
trade or commerce . . . with foreign nations.” § 6a.
IN RE DYNAMIC RANDOM ACCESS MEMORY 14353
linked to the domestic effects, and not independent of them.
Id. at 175. The Court left open the question of the standard to
apply in determining whether the plaintiffs alleged a sufficient
link between the U.S. effect and their foreign injury so as to
establish subject matter jurisdiction under the Sherman Act.7
[6] On remand, the D.C. Circuit held that the “gives rise to”
language of § 6a of the FTAIA domestic injury exception
requires a direct or proximate causal relationship between the
domestic effect and the foreign injury, not merely a “but for”
relationship. See Empagran S.A. v. F. Hoffmann-Laroche,
Ltd., 417 F.3d 1267, 1271 (D.C. Cir. 2005) (“Empagran II”).
The plaintiffs’ asserted theory on remand was that the domes-
tic effect of the anticompetitive conduct — higher U.S. vita-
min prices — gave rise to their foreign injury of higher
vitamin prices abroad because the defendants could not have
maintained their global price-fixing arrangement without fix-
ing the prices in the United States as well. The court con-
cluded that under this theory the domestic effect of the
conspiracy was only a “but for” cause of the plaintiffs’ inju-
ries, so the requirements of the FTAIA exception were not
met and the Sherman Act was therefore inapplicable. The
7
The Areeda & Hovenkamp treatise comments on this open question as
follows:
Clearly [the Supreme Court] could not have meant that the
mere fact that this was a conspiracy involving both sellers and
buyers all over the world was sufficient. To be sure, in such a
conspiracy the injury to any particular buyer is linked to the
injury suffered by other buyers or else the conspiracy would not
work. . . .
But the forbearance of one cartel member from cutting price or
shipping into another cartel member’s territory is necessary to the
functioning of every cartel. To interpret “linkage” of foreign and
domestic injury this broadly would have undermined the entirety
of the Court’s opinion, which unambiguously held that foreign
plaintiffs injured by a conspiracy that also injured American pur-
chasers could not sue under the Sherman Act.
Areeda & Hovenkamp ¶ 272i5, pp. 317-18.
14354 IN RE DYNAMIC RANDOM ACCESS MEMORY
Eighth Circuit recently joined the D.C. Circuit in interpreting
the FTAIA’s domestic injury exception to require proximate
cause. See In re Monosodium Glutamate Antitrust Litig., 477
F.3d 535, 539 (8th Cir. 2007).
We have not had occasion since Empagran I to illuminate
the standard that applies in determining whether a domestic
effect “gives rise to” a foreign injury, where the plaintiff
alleges its foreign injury was linked to the domestic effect of
the defendants’ anticompetitive conduct. Like the plaintiffs in
Empagran II, Centerprise contends the FTAIA’s domestic
injury exception requires only “but for” causation and that its
claim meets this standard. Alternatively, Centerprise contends
that its claim satisfies even a proximate cause standard.
[7] Like the D.C. Circuit and the Eighth Circuit, we con-
clude that “but for” causation cannot suffice for the FTAIA
domestic injury exception to apply and therefore adopt a
proximate causation standard. As our sister circuits have
explained, a proximate cause standard is consistent with prin-
ciples of comity — “the respect sovereign nations afford each
other by limiting the reach of their laws.” Empagran II, 417
F.3d at 1271 (internal quotations omitted). The Supreme
Court counseled in Empagran I that the principles of comity
require us to “ordinarily construe[ ] ambiguous statutes to
avoid unreasonable interference with the sovereign authority
of other nations.” 542 U.S. at 164; see In re Monosodium Glu-
tamate, 477 F.3d at 538; Empagran II, 417 F.3d at 1271. To
interpret the FTAIA broadly as requiring only “but for” cau-
sation would risk the very sort of interference that we ordinar-
ily seek to avoid. See Empagran I, 542 U.S. at 165 (“Why
should American law supplant, for example, Canada’s or
Great Britain’s or Japan’s own determination about how best
to protect Canadian or British or Japanese customers from
anticompetitive conduct engaged in significant part by Cana-
dian or British or Japanese or other foreign companies?”).8
8
The case before us illustrates this point well. At oral argument, Center-
prise acknowledged “[it] could” bring suit in the United Kingdom against
IN RE DYNAMIC RANDOM ACCESS MEMORY 14355
[8] Further, the Supreme Court said that “the FTAIA’s lan-
guage and history suggest that Congress designed the FTAIA
to clarify, perhaps to limit, but not to expand in any signifi-
cant way, the Sherman Act’s scope as applied to foreign com-
merce.” Empagran I, 542 U.S. at 169 (emphasis in original).
If we were to adopt a “but for” standard, we would indeed be
expanding the Sherman Act’s scope as applied to foreign
commerce, notwithstanding Centerprise’s contention to the
contrary.
None of the cases predating the FTAIA interpret the reach
of the Sherman Act as expansively as Centerprise urges we
should do here. The pre-FTAIA cases that Centerprise relies
upon, Pfizer, Inc. v. Government of India, 434 U.S. 308
(1978), and Industria Siciliana Asfalti, Bitumi, S.p.A. v. Exxon
Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977
WL 1353 (S.D.N.Y. Jan. 18, 1977), certainly do not reflect a
“but for” standard. In Pfizer, although saying that Congress
did not intend to make remedies under U.S. antitrust laws
available only to U.S. consumers, the Supreme Court was
speaking only to the issue of whether a foreign nation could
be a “person” under antitrust laws. See Pfizer, 434 U.S. at
312, 314. It did not address the requisite causal relationship
between the domestic effect and the foreign injury. If any-
thing, the Court wrote in terms suggesting that the foreign
sovereigns were directly injured by the defendants’ antitrust
violations. See, e.g., id. at 314-15 (“To deny a foreign plaintiff
injured by an antitrust violation the right to sue would . . . per-
mit a price fixer or monopolist to escape full liability for his
illegal actions and would deny compensation to certain of his
victims, merely because he happens to deal with foreign cus-
the defendants for their anticompetitive conduct. We recognize that some
of the defendants here are American corporations, but many are not, and
Centerprise does not dispute that all of its purchases were made outside
U.S. commerce, making real the risk of interference with a foreign
nation’s ability to regulate its commercial affairs.
14356 IN RE DYNAMIC RANDOM ACCESS MEMORY
tomers.” (emphasis added)). In Industria Siciliana, the domes-
tic effect at issue was plainly the direct cause of the plaintiff’s
injury. There, a U.S. company was party to a reciprocal agree-
ment that coerced the foreign consumer to forgo a more
advantageous bid for design and engineering services from
another U.S. company, a violation whose domestic effect
directly and proximately caused the foreign plaintiff having to
pay higher, super-competitive prices for the U.S. services. See
Industria Siciliana, 1977 WL 1353, at *2, 11.
[9] Finally, the proximate cause standard is consistent with
general antitrust principles, which typically require a direct
causal link between the anticompetitive practice and plain-
tiff’s damages. See Holmes v. Sec. Investor Prot. Corp., 503
U.S. 258, 267-68 (1992); Associated Gen. Contractors of
Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,
533-35 (1983); see also In re Monosodium Glutamate, 477
F.3d at 538-39. Accordingly, we hold that the “gives rise to”
language of the domestic injury exception requires a direct or
proximate causal relationship.
[10] Applying the proximate cause standard to Center-
prise’s stated claim, we conclude that the domestic effect of
the defendants’ alleged price-fixing conspiracy did not give
rise to Centerprise’s alleged foreign injury so as to satisfy the
second prong of the FTAIA domestic injury exception. The
defendants’ conspiracy may have fixed prices in the United
States and abroad, and maintaining higher U.S. prices might
have been necessary to sustain the higher prices globally, but
Centerprise has not shown that the higher U.S. prices proxi-
mately caused its foreign injury of having to pay higher prices
abroad. Other actors or forces may have affected the foreign
prices. In particular, that the conspiracy had effects in the
United States and abroad does not show that the effect in the
United States, rather than the overall price-fixing conspiracy
itself, proximately caused the effect abroad. See In re Mono-
sodium Glutamate, 477 F.3d at 539-40 (“The domestic effects
of the price fixing scheme (increased U.S. prices) were not the
IN RE DYNAMIC RANDOM ACCESS MEMORY 14357
direct cause of the appellants’ injuries. Rather, it was the for-
eign effects of the price fixing scheme (increased prices
abroad).” (emphasis added)).
[11] Notably, Centerprise is a foreign consumer that made
its purchases entirely outside of the United States. It has
recourse under its own country’s antitrust laws. See supra
note 7. Centerprise’s indirectly linked foreign injury is not of
the type that Congress intended to bring within the Sherman
Act’s reach when it enacted the FTAIA, as evidenced by the
domestic injury exception’s narrow phrasing. Centerprise’s
causation theory directly parallels the “but for” or indirect
causation theories rejected in Empagran II and In re Mono-
sodium Glutamate.9 See Empagran II, 417 F.3d at 1270
(rejecting as insufficient the plaintiffs’ theory that “[b]ecause
the . . . product (vitamins) was fungible and globally mar-
keted, [the defendants] were able to sustain super-competitive
prices abroad only by maintaining super-competitive prices in
9
Centerprise’s argument that its case is similar to Caribbean Broadcast-
ing Systems, Ltd. v. Cable and Wireless PLC, 148 F.3d 1080 (D.C. Cir.
1998), and MM Global Services v. Dow Chemical Co., 329 F. Supp. 2d
337 (D. Conn. 2004), also fails. First, it is questionable whether Caribbean
Broadcasting has any relevance, because it pre-dates Empagran I and does
not interpret the provision of the FTAIA at issue here. See Caribbean
Broad., 148 F.3d at 1087. Second, the case is factually distinguishable.
There, the plaintiff alleged the defendants violated the Sherman Act in
maintaining a broadcast monopoly in the eastern Caribbean by misrepre-
senting to its advertising customers the breadth of the station’s broadcast-
ing reach, an effect of which was that U.S. advertisers paid excessive
prices for advertising. This effect in the United States directly caused the
plaintiff to lose revenue because it could not sell advertising to the same
U.S. businesses. Centerprise alleges no such foreclosure of the market by
rivals. MM Global Services is also inapposite because the plaintiffs there
pled direct participation in domestic commerce, unlike Centerprise whose
complaint concerns only wholly foreign transactions. The plaintiffs argued
that the defendants fixed minimum resale prices and other terms for sell-
ing and reselling products in and from the United States, and compelled
plaintiffs to agree to engage in a price maintenance conspiracy, thereby
injuring the plaintiffs by precluding them from fully competing in the
sales of their products. See MM Global Services, 329 F. Supp. 2d at 342.
14358 IN RE DYNAMIC RANDOM ACCESS MEMORY
the United States as well.”); In re Monosodium Glutamate,
477 F.3d at 539-40. Likewise, Centerprise’s statement that
“[t]he United States prices were the source of, and substan-
tially affected the worldwide DRAM prices” alleges no more
than the “but for” causation that we hold does not suffice. In
sum, Centerprise’s complaint suggests that super-competitive
DRAM prices in the United States may have facilitated the
defendants’ scheme to charge super-competitive prices
abroad, but it does not sufficiently allege a theory that the
higher U.S. prices proximately caused Centerprise’s foreign
injury of having to pay higher prices outside the United
States.
[12] Centerprise argues, however, that beyond alleging a
theory similar to that rejected by our sister circuits, it is alleg-
ing “a direct correlation between the U.S. price and the prices
abroad” and “that the Defendants’ activities resulted in the
U.S. prices directly setting the worldwide price.” At oral argu-
ment, Centerprise was unable to explain how these additional
allegations change its causation theory or how they make its
claim distinguishable from those in Empagran II or In re
Monosodium Glutamate. First, a direct correlation between
prices does not establish a sufficient causal relationship. Simi-
lar arguments were made and rejected in Empagran II and In
re Monosodium Glutamate — that there was a single global
price kept in equipoise by the maintenance of super-
competitive prices in the U.S. market. See Empagran II, 417
F.3d at 1271, n.5; In re Monosodium Glutamate, 477 F.3d at
539-40. As to Centerprise’s assertion that the defendants’
activities resulted in the U.S. prices setting the worldwide
price, Centerprise has taken liberties in characterizing the lan-
guage of its complaint and, moreover, has not set forth a the-
ory with any specificity of how this price-setting occurred or
how it shows a direct causal relationship.10 See Kendall v.
10
Most notably, paragraph 75 of its complaint alleges:
Memory purchases are a 24 hour global business, dependent in
large part on United States events. For example, Plaintiff and
IN RE DYNAMIC RANDOM ACCESS MEMORY 14359
Visa U.S.A., Inc., 518 F.3d 1042, 1046-47 (9th Cir. 2008)
(faulting antitrust complaint for failing to plead necessary evi-
dentiary facts). We therefore hold that Centerprise has not
sufficiently alleged that the domestic effect gave rise to its
foreign injury so as to bring its claim within the FTAIA
exception.
The district court properly concluded that Centerprise’s
failure to provide any comprehensible theory alleging a direct
causal link between the domestic effects and the foreign
injury warranted dismissal.
III. Leave to Amend
We review a district court’s denial of leave to amend a
complaint for abuse of discretion. See McGlinchy v. Shell
Chem. Co., 845 F.2d 802, 818 (9th Cir. 1988). A court prop-
erly exercises its discretion in denying leave to amend if the
proposed amendment would be futile. See Gabrielson v.
Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986).
At oral argument before the district court, Centerprise pro-
posed amending its complaint to include an allegation about
the correlation between “U.S. prices during the conspiracy
many Class members start their days with communications to
Defendants in Taiwan and Korea to understand what pricing is
available for DRAM, and as the day goes on follow sales in the
United States. Plaintiff and Class members were required to track
the DRAM prices in dollars, which was the only available mea-
sure due to Defendants’ sales and distribution practices, then
work on dollar exchange rates in order to buy the DRAM at the
best available price worldwide. The United States prices were the
source of, and substantially affected the worldwide DRAM
prices.
The significance of these assertions, however, is not self-evident and
Centerprise has not elaborated on how any of its asserted facts show that
the higher U.S. DRAM prices proximately caused the excessive DRAM
prices that Centerprise paid.
14360 IN RE DYNAMIC RANDOM ACCESS MEMORY
and those in Europe and Asia-Pacific.” Centerprise argued
that this would show that the defendants’ “pricing of DRAM
in the U.S. market, . . . with the knowledge that based on the
way the market worked and the sales and distribution prac-
tices, . . . was going to result in a direct correlation.” Center-
prise argued this correlation was reflected in charts it
submitted to the district court. The district court noted that an
additional allegation about the correlation or interdependence
of markets would not suffice to show that the effect in the
United States actually “g[ave] rise to” the plaintiff’s claim;
Centerprise could not escape a finding of no subject matter
jurisdiction unless it came up with a different theory of recov-
ery altogether.
[13] We agree that the additional allegation Centerprise
proposed was similar to those it already made and alleged too
indirect a link to support subject matter jurisdiction under the
FTAIA. Centerprise’s assertion that the domestic and foreign
prices were directly correlated, without more, did not warrant
granting leave to amend. Therefore, we hold the district court
did not abuse its discretion in denying leave to amend as futile.11
The judgment of the district court is affirmed.
AFFIRMED.12
NOONAN, Circuit Judge, concurring:
There is such a thing as “cause in fact,” that is, an event
that, not necessarily alone, brings about a given result. A “but
11
In light of our decision on FTAIA subject matter jurisdiction and the
district court’s refusal of leave to amend the complaint, we do not reach
defendants’ contention that Centerprise lacks antitrust standing.
12
Appellees’ Request for Judicial Notice filed September 20, 2006 is
denied as unnecessary.
IN RE DYNAMIC RANDOM ACCESS MEMORY 14361
for” cause is cause in fact. A “legal cause” is a cause in fact
that is recognized in law as creating liability. A “proximate
cause” is a legal cause. What turns cause in fact into a legal
cause is a value judgment that the cause in fact creates an
unacceptable risk of injury to a protected interest. What is an
unacceptable risk and what is to be protected depend on the
values of the society.
As Cardozo’s famous opinion in Palsgraf makes clear, that
is how causation is often considered in the law of negligence.
Antitrust law, apparently, still offers “proximate” as if it pro-
vided something more than a label for a judgment that the
conduct in question is foreseeably harmful to a social interest
worthy of protection.
In the instant case, it would seem that reasonably prudent
persons in the position of the defendants would see that their
actions setting prices in the United States would negatively
affect customers in the United States and elsewhere. But it has
been the judgment of Congress and the Supreme Court that
the economic interests of consumers outside the United States
are normally not something that American law is intended to
protect. Hence it is difficult to persuade a court that injury to
foreign consumers has been “caused” by price-fixing in the
United States. It’s so difficult that amendment of the com-
plaint becomes futile and jurisdiction itself is found not to
exist. We reach this vanishing point not from guidance in
words like “proximate” or “direct” but from a strong sense
that the protection of consumers in another country is nor-
mally the business of that country. Location, not logic, keeps
Centerprise’s claim out of court.
| {
"pile_set_name": "FreeLaw"
} |
132 S.W.3d 871 (2003)
Deborah CONNELLY (Formerly Degott), Appellant,
v.
Robert Nicholus DEGOTT; and Thomas Haile, Appellees.
No. 2001-CA-002579-MR.
Court of Appeals of Kentucky.
February 7, 2003.
Rehearing Denied April 11, 2003.
Discretionary Review Denied by Supreme Court May 12, 2004.
Katie Marie Brophy, Louisville, KY, for appellant.
Thomas V. Haile, Louisville, KY, for appellees.
Before COMBS and PAISLEY, Judges; MILLER, Special Judge.[1]
OPINION
PAISLEY, Judge.
This is an appeal from an order of the Jefferson Circuit Court directing appellant to reimburse her former husband for child care expenses which he paid to her but which she did not actually incur.
*872 Deborah Connelly (formerly Degott) and Robert Degott were divorced by a final decree entered on February 14, 2000. The decree incorporated the parties' marital settlement agreement, which provided that the parties would have joint custody of their two minor children, that the wife would be the primary residential custodian, and that the "existing child support amount shall remain in effect for thirty (30) days from September 28, 1999 and thereafter, Respondent shall pay child support consistent with the Child Support Guidelines by Wage Assignment Order." Although the record on appeal does not contain any prior child support order, it does contain an agreed order, entered August 16, 1999, which provided that Robert would pay various household and family bills and would provide Deborah with $75.00 per week. That amount was not designated as either child support or maintenance.
The matter of the appropriate amount of child support to be paid after October 28, 1999, was referred to the Domestic Relations Commissioner, who issued a report which the trial court adopted in the form of an order entered March 1, 2000. The commissioner's calculation of child support clearly included Deborah's stated child care costs in the amount of $293.33 per month which, when added to the base amount of child support calculated on the parties' respective incomes, resulted in Robert incurring a total support obligation of $1,287.46 per month. Robert was ordered to pay that amount effective October 28, 1999.
Robert, who obviously was skeptical of the validity of the claimed child care costs, filed a motion on February 1, 2001, asking that Deborah be ordered to furnish him with proof of the postdissolution payments. It appears from the record that no action was taken on that motion, and Robert subsequently filed another motion asking the court for a judgment against Deborah for "the overpayment of day care expense by the Respondent to the Petitioner since October 28, 1999." He alleged in his supporting affidavit that during that period, as later demonstrated by the subpoenaed records of the child care providers, Deborah's actual child care expenses totaled $167.00, with the result that he overpaid child care expenses by $4,578.00. He asked the court to award him attorney's fees for the costs associated with bringing the motions.
Deborah then filed a countermotion asking the court to increase Robert's child support obligation and to award her attorney's fees for the costs of bringing her motion. After a hearing, the commissioner filed a report finding that Deborah in fact incurred child care expenses of only $167.00 during the period in question, and that Robert overpaid such expenses by $4,578.00. However, the commissioner recommended against a reimbursement of the overpayment. She also found no basis for increasing Robert's monthly child support obligation, and she recommended that the parties bear their own costs. Both parties excepted to the commissioner's recommendations and, after a hearing, the trial court issued an opinion and order dealing with these matters.
The court found that Robert had in fact paid Deborah $4,794.26 for child care expenses which she did not incur. The court also found that Robert had made numerous requests to Deborah for information concerning the child care situation and that she had repeatedly assured him that the children continued to be enrolled in the same programs as before, thereby intentionally misleading him "into believing the child care expenses had not changed since the child support order was issued." The court further found that Deborah's "disingenuous position" resulted in Robert *873 "needlessly incurring substantial attorney's fees in order to discover the truth and institute this action." Deborah nevertheless asserted that ordering repayment of the overpayment would violate the general prohibition against the retroactive modification of child support. See Clay v. Clay, Ky.App., 707 S.W.2d 352 (1986). The court discussed Clay`s underlying public policy but found that the overpayment was an amount in addition to, rather than part of, the amount of the child support obligation calculated according to the guidelines set out in KRS 403.211(6). The court therefore ordered Deborah to reimburse Robert for the overpayment, and to pay his attorney's fees relating to that issue. This appeal followed.
Deborah first contends that the trial court lacked authority to retroactively modify Robert's child support obligation. However, unlike the situations in the cases relied upon by Deborah, here the dispute does not concern a request to modify the amount of child support which was calculated according to the child support guidelines table set out in KRS 403.212. Instead, the dispute addresses the simple statutory allocation between the parties, "in proportion to their adjusted gross income, [of] reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines." (Emphasis added.) KRS 403.211(6). The allocation, in other words, simply constitutes a prepayment or reimbursement of a proportionate share of the actual costs incurred in obtaining child care as authorized under the statute. Clearly, if those costs are not incurred by either party, they are not subject to reimbursement and the policy concerns which dictate against the retroactive modification of child support are not applicable. Certainly, such policy concerns do not extend to a situation such as this, where a litigant has misled the court as to the truth of his or her circumstances. Surely a litigant cannot misrepresent the facts, attempt to hide the truth from her former spouse and the court, and avoid the consequences of those actions.
Further, the remedy fashioned by the trial court in this case does not violate the public policy considerations expressed in Clay. The court declined to grant Robert's request for a judgment against Deborah but required that she reimburse him at the rate of $100.00 per month (without interest), thereby clearly mitigating any impact on the parties' children. Robert was ordered to continue to pay Deborah child support of $1,052.80 per month while maintaining health insurance on the children. The court also ordered Robert to pay, within one week of receiving appropriate documentation, 80% of any child care expenses incurred by Deborah.
Next, Deborah contends that the trial court abused its discretion in awarding Robert attorney's fees and in denying her motion for the same. The decision to award attorney's fees clearly falls within the sound discretion of the trial court. "That court is in the best position to observe conduct and tactics which waste the court's and attorneys' time and must be given wide latitude to sanction or discourage such conduct." Gentry v. Gentry, Ky., 798 S.W.2d 928, 938 (1990). Given the evidence showing that Robert's attorney's fees were substantially increased by Deborah's dissembling behavior, and notwithstanding the financial disparity between the parties, we cannot say that the trial court abused its discretion under these facts. Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513 (2001).
*874 For the foregoing reasons, the decision of the Jefferson Circuit is hereby affirmed.
ALL CONCUR.
NOTES
[1] Senior Status Judge John D. Miller, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
| {
"pile_set_name": "FreeLaw"
} |
473 S.E.2d 531 (1996)
222 Ga. App. 97
DAVIS
v.
PIEDMONT HOSPITAL, INC.
No. A96A0198.
Court of Appeals of Georgia.
June 18, 1996.
Reconsideration Denied July 8, 1996.
Certiorari Denied October 11, 1996.
*532 Orlando & Komie, Richard Kopelman, Decatur, for appellant.
Tittsworth & Grabbe, John C. Grabbe IV, Atlanta, for appellee.
McMURRAY, Presiding Judge.
In this slip and fall case, plaintiff Davis appeals the grant of summary judgment in favor of defendant Piedmont Hospital, Inc. Held:
Plaintiff's evidence presents a "foreign substance" type of situation. While attempting to deliver certain materials to her physician, plaintiff was forced to use an unfamiliar route about defendant's premises in order to avoid construction work. The fall occurred while she was descending an outside stairway which she had never before traversed. It had been raining, and the ground was wet. Plaintiff used the handrail as she walked down the stairs until she reached an obstruction consisting of "two 2×4 boards" connected in an "L" shape and resting against or attached to the handrail. There were only a few steps remaining so plaintiff did not deem it worthwhile to cross to the opposite handrail, which was over 19 feet from the one she had been using, before going down the few remaining steps. On the next to last step her foot slipped, and she fell.
Through her own testimony and other evidence, plaintiff sought to establish that there was debris, mold, and slime on the steps which caused a slippery condition beyond that which would have been caused merely by the rain and that this material caused her fall. Plaintiff maintained that some of the material from the step on which she slipped was captured on the top of her left shoe when it rubbed on the same step upon which she slipped. Plaintiff also testified that she was looking but could not see this material on the steps since it was obscured by the rainwater.
"`[W]here an invitee has slipped and fallen on a foreign substance ..., knowledge is the decisive issue and the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.'... [Cit.]" Shansab v. Homart Dev. Co., 205 Ga.App. 448, 450(3), 422 S.E.2d 305. See also PCT Svcs. v. Pope, 208 Ga.App. 192, 193-194, 430 S.E.2d 139.
The second element is clearly shown by plaintiff's evidence that she was unfamiliar with the stairs in question and that the foreign substance on the stairs was not visible even though she was using care to watch where she was stepping. The evidence as to the first element is highly contested with defendant seeking to establish that there was in fact no foreign substance on the steps, or that any foreign substance on the steps had not been there for a period of time sufficient to provide defendant with constructive knowledge of the hazard, and that plaintiff had tripped over her own feet. Nonetheless, for purposes of summary judgment we do not look to the conflicts in the evidence but instead to whether plaintiff's evidence presents a prima facie case which would authorize a jury to resolve the issues of fact in her favor. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474.
Based on plaintiff's description of the material in which she slipped as being of organic origin such as caused by a lack of proper drainage, we must conclude that plaintiff has presented some evidence of defendant's constructive knowledge of the substance. *533 "A proprietor has a duty to exercise ordinary care to keep the premises safe for invitees, which includes `a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.' (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga.App. 307, 308, 447 S.E.2d 637 (1994).... [I]f the evidence shows that a foreign substance has remained on the floor of the premises for a sufficient period of time that it should have been discovered and removed in a reasonable inspection of the premises, then an inference arises from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the foreign substance. Food Giant v. Cooke, 186 Ga.App. 253, 255, 366 S.E.2d 781 (1988)." Johnson v. Autozone, 219 Ga.App. 390, 392, 465 S.E.2d 463. In this instance, the nature of the material on which plaintiff alleges to have slipped suggests in and of itself that the material may have been present for some period of time at least sufficient for the growth of the organic matter. Thus, questions for a jury are posed as to the existence of any foreign matter, the accuracy of plaintiff's identification and description of the material on which she alleged to have slipped, and whether that material should have been found and removed in the course of a reasonable inspection of the premises by defendant. Plaintiff having presented some proof of all elements of her case, the grant of summary in favor of defendant was error.
Judgment reversed.
JOHNSON and RUFFIN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
888 So.2d 525 (2004)
Martha K. HARLEY
v.
BRUNO'S SUPERMARKETS, INC., d/b/a Food Fair, and Dexter Nicholson.
2020831.
Court of Civil Appeals of Alabama.
February 20, 2004.
Steven W. Couch, Birmingham, for appellant.
Ralph D. Gaines III and Ronald J. Gault of Gaines, Wolter & Kinney, P.C., Birmingham, for appellees.
CRAWLEY, Judge.
Martha K. Harley appeals from a summary judgment entered in favor of Bruno's Supermarkets, Inc., d/b/a Food Fair (hereinafter referred to as "Food Fair" or "the store") and Dexter Nicholson. We reverse and remand.
Harley sued Food Fair and Nicholson, the store's manager, seeking compensation for injuries she sustained as a result of tripping over a curb outside the store and falling. Food Fair and Nicholson filed an answer asserting the affirmative defenses of contributory negligence and that the curb was an open and obvious danger. After the completion of discovery, Food Fair and Nicholson filed a motion for a summary judgment with a supporting memorandum and evidentiary exhibits. Harley filed a response to the motion with a supporting memorandum and evidentiary exhibits. After conducting a hearing on *526 the motion, the trial court entered a summary judgment in favor of Food Fair and Nicholson, without stating a rationale. Harley filed a notice of appeal to the supreme court, and this case was later transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
On appeal, Harley argues that the trial court erred in entering a summary judgment in favor of Food Fair and Nicholson because, she says, she presented substantial evidence in response to the motion for a summary judgment that created a genuine issue of material fact. Harley specifically relies on evidence that, she claims, tended to show (1) that Food Fair and Nicholson failed to warn the store's customers of the hazard posed by the curb and (2) that the hazardous condition created by the curb was not open and obvious. Our review of a summary judgment is de novo.
"In reviewing the disposition of a motion for summary judgment, `we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was `entitled to a judgment as a matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is `substantial' if it is of `such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)."
Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).
This court has observed:
"In Alabama, the liability of a premises owner turns in the first instance on the classification given to the injured party. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997). When a person visits the premises for commercial purposes, as in this case, the person is an invitee. Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d at 161. The duty of a premises owner to an invitee'" `is limited to hidden defects which are not known to the invitee and would not be discovered by him in the exercise of ordinary care.'"' Id. (quoting Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), quoting in turn Harvell v. Johnson, 598 So.2d 881, 883 (Ala.1992)). Stated another way, a premises owner '"has no duty to warn a invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part."' Id. (quoting Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980)).''
Browder v. Food Giant, Inc., 854 So.2d 594, 595 (Ala.Civ.App.2002). Further, "`questions of openness and obviousness of a defect or danger and of [an invitee's] knowledge are generally not to be resolved on a motion for summary judgment.'" Harding v. Pierce Hardy Real Estate, 628 *527 So.2d 461, 463 (Ala.1993) (quoting Harvell v. Johnson, 598 So.2d 881, 883 (Ala.1992)).
Harley submitted evidence that provided the following account of the events leading up to her fall.[1] Harley arrived at the store around 6:00 p.m. on an evening in January; it was dark at this time and the only lighting provided at the scene of the incident was from light that illuminated from the store and parking lot. Harley had not been to the store in approximately three years. Harley attempted to enter the store through doors located on the north side of the building; however, because those doors were locked, she went to the south side of the building to enter. When she approached the store's entrance located on the south side of the building, Harley tripped over the curb, which was located in a fire lane in front of the entrance. The curb was painted yellow, as was the striping of the fire lane. Harley stated that she was not in total darkness and that she could see the ground; however, she stated that she did not see the curb until after she had tripped and fallen.
Our supreme court has held, under circumstances similar to those presented here, that the question as to whether a danger was open and obvious is a question of fact to be determined by a jury. In Ex parte Kraatz, 775 So.2d 801 (Ala.2000), an invitee tripped and fell over a speed bump located in the premises owner's parking lot; the incident occurred at night, and the parking lot was dimly lit. The speed bump was not marked in such a way as to make it visible at night or to otherwise set it apart from the rest of the parking lot. In this case, the curb was painted with the same yellow paint as was the striping of the fire lane, it was dark outside the store, and the only illumination of the scene came from the store. In Kraatz, the supreme court distinguished the case before it from cases involving total darkness, see Owens v. National Security of Alabama, Inc., 454 So.2d 1387 (Ala.1984), and Ex parte Industrial Distribution Services Warehouse, Inc., 709 So.2d 16 (Ala.1997), by stating:
"Several salient features distinguish the Kraatz case before us from Owens and Ex parte Industrial Distribution Warehouse, supra. First, [the invitee in Kraatz] was walking in dim light, not total darkness. Partial or poor light, like that in the case before us, could mislead a reasonably prudent person into thinking that he or she would be able to see and avoid any hazards. The variable factors which make openness-and-obviousness under partial or poor light conditions a fact question not appropriate for resolution by summary judgment are direction, level, color, diffusion, shadows, and like qualities of light, as well as the other physical features of the scene. See, e.g., Woodward [v. Health Care Auth. of Huntsville, 727 So.2d 814 (Ala.Civ.App.1998)].
"Second, [the invitee] was walking in the light conditions which [the premises owner] provided and expected his customers to use in walking where she fell. The light conditions were not abnormal for the time or place so as to alert [the invitee] or any other invitee to a need to forgo walking there. Third, [the invitee] was walking on a surface [the premises owner] provided and expected his customers to use. [The invitee] had no reason to expect or to suspect an obstruction in her path. Indeed, what *528 would have been open and obvious to [the premises owner's] customers was that the premises owner had provided both the light conditions and the surface conditions for them to use for walking, just as [the invitee] was using them when she tripped and fell."
775 So.2d at 804.
Construing the record in a light most favorable to Harley and considering our supreme court's holding in Kraatz, we conclude that Harley presented sufficient evidence to withstand the motion for a summary judgment filed by Food Fair and Nicholson. Accordingly, the question as to whether the curb was an open and obvious danger is a question of fact to be presented to a jury. The trial court's judgment is therefore reversed, and the cause is remanded to the trial court for it to proceed in a manner consistent with this opinion.
REVERSED AND REMANDED.
YATES, P.J., and PITTMAN and MURDOCK, JJ., concur.
THOMPSON, J., dissents, without writing.
NOTES
[1] We note that this description of the location and series of events leading up to Harley's tripping over the curb and falling are stated in a light most favorable to her since she was the nonmovant in this case. See Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997) (citing Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993), and Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)).
| {
"pile_set_name": "FreeLaw"
} |
388 F.3d 656
Christopher L. FALCONE, Plaintiff-Appellant,v.UNIVERSITY OF MINNESOTA, Defendant-Appellee.
No. 03-3469.
United States Court of Appeals, Eighth Circuit.
Submitted: June 16, 2004.
Filed: November 15, 2004.
Rehearing and Rehearing En Banc Denied December 20, 2004.
Appeal from the United States District Court for the District of Minnesota, John R. Tunheim, J.
Gregg Marlow Corwin, argued, St. Louis Park, Minnesota, for appellant.
Jennifer Lynn Frisch, argued, Minneapolis, Minnesota (Mark B. Rotenberg and Marianne E. Durkin on the brief), for appellee.
Before LOKEN, Chief Judge, JOHN R. GIBSON and BYE, Circuit Judges.
LOKEN, Chief Judge.
1
When Christopher Falcone was admitted to the University of Minnesota Medical School, he advised the University's Disability Services Office that he suffers from learning disabilities. Falcone received accommodations but was dismissed from the medical school after failing three clinical courses. He then commenced this action, claiming the dismissal violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a). The district court1 granted summary judgment in favor of the University, and Falcone appeals. Reviewing the grant of summary judgment de novo, and viewing the facts in the light most favorable to Falcone, we affirm. See Amir v. St. Louis Univ., 184 F.3d 1017, 1024 (8th Cir.1999) (standard of review).
2
I. Background.
3
The University divides its four-year medical school curriculum into two parts. After two years of courses in a classroom setting, students undertake clinical rotations during the third and fourth years. When Falcone began taking classroom courses in September 1995, he was allowed extra test time, flexible deadlines, and tutoring, accommodations similar to those afforded when he obtained undergraduate and master's degrees from Berkeley and the University of Illinois. By November 1995, he was nevertheless failing two first year courses and had missed an exam in a third course. The University's Committee on Student Scholastic Standing ("COSSS") recommended that he switch to a part-time schedule, and Falcone agreed.
4
In the 1995-96 academic year, Falcone successfully completed five of fourteen Year One courses, but he failed Human Genetics and was therefore required to appear before COSSS. After an August 1996 meeting, COSSS advised Falcone that he must complete the nine remaining Year One classes, including Human Genetics, during the 1996-97 academic year. Failure to do so, COSSS warned, "may result in a hearing for dismissal." Falcone also consulted with a Disability Services Specialist and agreed to the following accommodations: double time and a private room for examinations, a microscope and slides for home use, student notes, and regular meetings with his faculty mentor. Falcone nonetheless failed Pathophysiology II in March 1998 and Pathophysiology IV in May 1998. COSSS permitted him to take make-up exams in these courses, despite a medical school policy that students below the eighty percent passing rate may not retake examinations. With this additional accommodation, Falcone completed his two years of classroom courses and began clinical rotations in the summer of 1998.
5
Falcone failed the Pediatric Neurology clinical rotation in the following winter quarter. The Associate Dean for Student Affairs wrote him advising that he must appear before COSSS to request permission to repeat the course. If permission was denied, the Dean explained, or if permission was granted and he again failed, or failed any other clinical course, "a hearing for dismissal will be held." Falcone appeared before COSSS in February 1999. He explained that he failed Pediatric Neurology because he was petrified by the fragile babies, intimidated by the faculty, and unprepared for the rotation. After a Disability Specialist developed a new list of accommodations for his clinical rotations,2 COSSS allowed Falcone to repeat the pediatric neurology rotation but warned that "if you fail another clinical rotation, you will be subject to a hearing for dismissal." A letter defining the new accommodations was sent to Falcone's clinical rotation instructors. At least two may not have received the letter, and another told Falcone it made him look incompetent.
6
Falcone failed the Clinical Medicine IV rotation in October 1999 and appeared before COSSS in December. COSSS allowed Falcone to remain in school and retake the course because he was not provided reasonable accommodations but expressed "substantial concerns about your overall readiness to obtain an M.D. degree." Falcone then failed Emergency Medicine in February 2000, his third failure in a clinical course. After a lengthy hearing, COSSS unanimously voted to dismiss him from the medical school. In an April 3, 2000, letter notifying Falcone of the decision, the Chair of COSSS wrote:
7
The Committee based its decision to dismiss you primarily on two factors: (1) the Committee felt that you had received appropriate accommodations on the Emergency Medicine rotation as requested by Disability Services; and (2) you have been unable to demonstrate, with or without accommodations, that you can synthesize data obtained in a clinical setting to perform clinical reasoning, which is an essential element of functioning as a medical student and ultimately as a physician.
8
Falcone appealed this decision and again appeared before COSSS, expressing the view that he "could become a physician scientist and have a bright future in basic research." COSSS voted unanimously not to reinstate him. The Chair's letter to Falcone explained that COSSS "continues to believe that you cannot adequately synthesize data obtained in a clinical setting to perform clinical reasoning .... Without these skills, the Committee believes you could compromise patient safety as a physician."
9
II. Discussion.
10
Section 504 provides, "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability ... be denied the benefits of ... any program or activity receiving Federal financial assistance ...." Section 504 applies to postgraduate education programs that receive or benefit from Federal financial assistance. See 45 C.F.R. § 84.41. However, the statute does not require an educational institution to lower its standards for a professional degree, for example, by eliminating or substantially modifying its clinical training requirements. "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); see 45 C.F.R. § 84.44(a) & App. A ¶ 31.
11
To avoid summary judgment on his wrongful dismissal claim, Falcone must present sufficient evidence that he was disabled, otherwise qualified, and dismissed solely because of his disability. See Jeseritz v. Potter, 282 F.3d 542, 546 (8th Cir.2002); Amir, 184 F.3d at 1029 n. 5. The University concedes for purposes of summary judgment that Falcone is disabled. The issues, then, are whether Falcone presented sufficient evidence that he was "otherwise qualified" to remain in medical school but was nonetheless dismissed solely because of his disability.
12
A. Taking up the easier issue first, we agree with the district court that no rational factfinder could conclude that Falcone was dismissed solely because of his learning disabilities. The University explained that Falcone was dismissed because "you have been unable to demonstrate, with or without accommodations, that you can synthesize data obtained in a clinical setting to perform clinical reasoning, which is an essential element of functioning as a medical student and ultimately as a physician." Falcone presented no evidence that this explanation was pretextual, or that the University's decision was a bad faith exercise of its virtually unrestricted discretion to evaluate academic performance. See Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78,95, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (Powell, J., concurring) (evaluating performance in clinical courses "is no less an `academic' judgment ... than assigning a grade to... written answers on an essay question"). "We will not invade a university's province concerning academic matters in the absence of compelling evidence that the academic policy is a pretext for [disability] discrimination." Amir, 184 F.3d at 1029.
13
Falcone argues that he presented sufficient evidence of bad faith because he was not provided all the accommodations listed in the Disability Specialist's letter in every clinical rotation. However, it is uncontroverted that the University made numerous accommodations throughout Falcone's medical school career, bending its policies and giving him additional chances when his performances raised serious concern about his ability to function as a physician. Despite these accommodations, Falcone failed three clinical courses, after he failed numerous classroom courses before finally completing that part of the curriculum. "Nothing in the record suggests that the University's decision was based on stereotypes about [Falcone's disability] as opposed to honest judgments about how [he] had performed in fact and could be expected to perform." Anderson v. Univ. of Wis., 841 F.2d 737, 741 (7th Cir.1988); see Hines v. Rinker, 667 F.2d 699, 703 (8th Cir.1981) ("no genuine issue of material fact is presented ... where the record provides ample evidence of the dismissed student's scholastic ineptitude") (quotation omitted).
14
The University was not required to tailor a program in which Falcone could graduate with a medical degree without establishing the ability to care for patients. Based on the uncontroverted evidence of Falcone's academic deficiencies, the only reasonable inference from this record is that he was dismissed because of the University's genuine concern about his inability to synthesize clinical data.
15
B. In addition, we agree with the district court's alternative ground, that Falcone failed to present sufficient evidence that he was otherwise qualified to remain in the University's medical school program. It is undisputed that Falcone was not qualified to remain in medical school without accommodations. He then bears the burden "to establish that reasonable accommodations for his disability would render him qualified for the medical school program." Stern v. Univ. of Osteopathic Med. & Health Scis., 220 F.3d 906, 909 (8th Cir.2000).
16
Falcone argues that genuine issues of material fact preclude summary judgment on this issue because he did not receive one of the agreed accommodations in all his clinical courses—access to at least weekly, regularly scheduled feedback meetings with each instructor—and because his performance improved in clinical rotations when he received that level of feedback. In prior medical school cases, the issue has been whether the students requested reasonable accommodations that the universities refused to provide. See Stern, 220 F.3d at 908-09; Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1048-51 (9th Cir.1999). Here, on the other hand, the parties agreed on the accommodations to be provided, but Falcone argues they were imperfectly delivered. The University's COSSS disagreed and also concluded that he was, in any event, academically unfit. The latter point is critical—even if there is a genuine fact dispute over whether the feedback accommodation was perfectly implemented, Falcone must still show that, if it had been perfectly implemented, he would have passed the clinical courses that he failed. We agree with the district court that Falcone did not meet this burden.
17
The University presented abundant evidence supporting its conclusion that no amount of additional feedback would have made Falcone "otherwise qualified" to remain in school and receive a medical degree. In Emergency Medicine, Falcone acknowledged that he received feedback at the end of each shift from the residents with whom he worked and never approached the course instructors for additional feedback, yet he failed that course, his third failure in a clinical rotation. In Renal Medicine, a clinical course in which Falcone praised the level of feedback provided, the instructor did not issue a grade because Falcone's "fundamental abilities for clinical medicine were not sufficient," and he was "not able to handle the load and working pace of an intern in an internal medicine program." In addition, Falcone's Pediatric Neurology instructor had "great reservations about [his] ability to practice medicine." His Otolaryngology instructor noted his inability "to synthesize the information at hand into a practical, workable plan." And his Surgery instructor noted that all faculty and residents who worked with Falcone "expressed concern with his ineptitude to relate with patients."
18
Falcone did not controvert this evidence, nor did he present evidence other than his own opinion that he would have become "otherwise qualified" had he been provided more or better instructor feedback. Falcone failed an unacceptable number of clinical courses because he could not "synthesize data obtained in a clinical setting to perform clinical reasoning." He failed to present evidence showing that more feedback or better delivery of any other agreed accommodation would have cured this deficiency. Accordingly, the grant of summary judgment on this issue was proper.
19
The judgment of the district court is affirmed.
Notes:
1
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the District of Minnesota
2
The accommodations included double time and a private environment for exams, flexible breaks during the day, permission to use checklists for clinical procedures and to take notes during meetings, and "access to at least weekly, regularly scheduled feedback meetings" with the instructors
| {
"pile_set_name": "FreeLaw"
} |
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3582
_____________
LANE C. HURLEY,
Appellant
v.
SUPERINTENDENT MERCER SCI; ATTORNEY GENERAL PENNSYLVANIA
________________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(D.C. Civil No. 3-13-cv-01502)
District Judge: Honorable Robert D. Mariani
Argued: October 9, 2018
Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.
(Filed: December 12, 2018)
Jeremy Gutman [ARGUED]
rd
40 Fulton Street, 23 Floor
New York, NY 10038
Counsel for Appellant
Courtney E. Hair [ARGUED]
Michelle H. Sibert
Cumberland County Office of District Attorney
1 Courthouse Square
2nd Floor, Suite 202
Carlisle, PA 17013
Counsel for Appellee
____________
OPINION*
____________
CHAGARES, Circuit Judge.
Lane Hurley was convicted by a jury of multiple acts of sexual abuse against his
then ten-year-old niece and he seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.
The District Court denied his habeas petition, and for the reasons stated below, we will
affirm.
I.
We write solely for the parties and therefore recite only the facts necessary to our
disposition. Because Hurley contends there was insufficient evidence to convict him, we
must view the evidence “in the light most favorable to the prosecution.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
In the summer of 1997, Hurley’s sister, brother-in-law, niece, and nephew moved
into his three-bedroom farmhouse in Cumberland County, Pennsylvania. Hurley’s sister
and brother-in-law worked outside of the house, often leaving him to watch his niece and
nephew, Jessica and Zach.
The first time Hurley invited then ten-year-old Jessica into his bedroom, he
showed her pornography on his computer. The encounters in his room escalated, and he
would masturbate while showing her pornography. As the summer progressed, Hurley
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
began to enter Jessica’s bedroom at night and molest her. At first, he would take off her
clothes and touch her and himself. On subsequent nights, he would penetrate her with his
finger, lick her, and tell her she was beautiful. By the end of the summer, he forced her to
perform oral sex. She estimated that Hurley molested her about 75 times; it “happened
quite frequently” throughout the summer. Appendix (“App.”) 80, 62.
Jessica did not tell anyone about the abuse for years because Hurley had told her
that, if she did, he would kill himself. She testified that she “love[s] [her] uncle” and
wanted to “protect [her] mom.” App. 57. Hurley moved out of the house in the fall of
1997 when he got married.
Jessica developed an eating disorder, and by 2000 she had gone from 115 pounds
to 69 pounds. She was hospitalized at Hershey Medical Center for six weeks.
On May 17, 2001, Jessica, now in eighth grade, suffered a breakdown in school.
The memories of the abuse “all of a sudden . . . were just there,” and she was taken to the
counselor’s office in a hysterical state. App. 65. Jessica’s mom picked her up from
school and brought her to psychologist Dr. Lane-Loney, whom Jessica had been seeing
for the eating disorder. Jessica told Dr. Lane-Loney about the abuse she endured during
the summer of 1997. Dr. Lane-Loney called child protective services, and Hurley was
arrested and charged.
After a jury convicted Hurley following a trial in the Court of Common Pleas of
Cumberland County, he was granted a new trial on the grounds that his trial counsel had
been ineffective. See Hurley v. Thompson, 2016 WL 10543972, at *4 (M.D. Pa. June 29,
2016). His second trial and pursuant convictions are the subject of this appeal. On re-
3
trial, Hurley moved to suppress Jessica’s testimony on grounds that it was predicated
solely on repressed memory. The theory of repressed memory provides that a person can
fully repress and forget a traumatic memory until it is later recovered, usually by a
therapist’s attempt to elicit it. In support of his motion, he presented three experts who
testified to the lack of scientific acceptance that memories can be repressed, forgotten,
and then recovered. The trial court denied Hurley’s motion.1 But it permitted his expert,
Dr. Labellarte, to testify before the jury about the unreliability of repressed memory,
provided he did not opine as to whether Jessica’s memory was repressed.
The jury convicted Hurley of involuntary deviate sexual intercourse, aggravated
indecent assault, indecent assault, and corruption of the morals of a minor. 18 Pa. Cons.
Stat. §§ 3123(a)(6), 3125(a)(7), 3126(a)(7), 6301(a)(1). His convictions were affirmed,
and the Pennsylvania Supreme Court denied his appeal. Commonwealth v. Hurley, 965
A.2d 295 (Pa. Super. 2008) (table), appeal denied, 981 A.2d 218 (Pa. 2009). Hurley then
commenced collateral proceedings by filing a petition under Pennsylvania’s Post-
Conviction Relief Act (“PCRA”), pursuant to 42 Pa. Cons. Stat. § 9541. The PCRA
court denied his petition, and the Superior Court affirmed the denial. Commonwealth v.
Hurley, 62 A.3d 450 (Pa. Super. 2012) (table). The Pennsylvania Supreme Court denied
1
In his original habeas petition, Hurley argued the trial court’s evidentiary ruling to
admit Jessica’s testimony deprived him of due process, but he has explicitly abandoned
that argument. The issue of admissibility is therefore not before us, regardless of
Hurley’s seeming attempt to cloak his barred admissibility claim with language of
sufficiency.
4
his Petition for Allowance of Appeal. Commonwealth v. Hurley, 67 A.3d 794 (Pa. 2013)
(table).
Hurley then petitioned for a writ of habeas corpus in the United States District
Court for the Middle District of Pennsylvania. The District Court denied the writ on the
grounds that the jury assessed the credibility of the witnesses, and it was “bound to defer
to the judgment of the jury after the defendant has received a fair trial.” App. 18. The
court expressed discomfort, however, with the theory of repressed memory, noting “the
growing consensus within the science community that the methods of memory recovery
are highly unreliable,” and sua sponte certified the following issue for appeal:
Whether a conviction in which the only direct evidence at trial originated
from repressed memory testimony of the victim may be constitutionally
sufficient, when a growing body of academic literature has criticized
repressed memory recovery as prone to the creation of false memories.
App. 19.2 Hurley timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have
appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Our review of the
District Court’s denial of habeas corpus is plenary because no evidentiary hearing was
held. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir. 2013). Under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), our review is “limited to the record that was
2
While Hurley raised other issues in his habeas petition, the District Court certified only
this. Third Circuit Local Appellate Rules provide that “the court of appeals will not
consider uncertified issues unless appellant first seeks, and the court of appeals grants,
certification of additional issues.” 3d Cir. L.A.R. 22.1(b) (2011). Hurley has not
petitioned to certify additional issues; therefore our focus is exclusively on whether there
was sufficient evidence for a rational juror to convict.
5
before the state court that adjudicated the prisoner’s claim on the merits.” Greene v.
Fisher, 565 U.S. 34, 38 (2011). The Superior Court of Pennsylvania’s affirmance on
direct appeal was the last state court decision on the merits.
III.
AEDPA provides that a federal court cannot grant a writ of habeas corpus to a
person in custody pursuant to a state court judgment with respect to any claim that the
state court adjudicated on the merits with two exceptions: first, if the adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), and second, the adjudication “resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). The Supreme Court
has underscored that “an unreasonable application of federal law is different from an
incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). That
is, the state court can get it wrong and yet still be reasonable; “[a] state court’s
determination that a claim lacks merit precludes habeas relief so long as ‘fair-minded
jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Stated differently, “even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Eley, 712 F.3d at 846 (quoting Harrington, 562
U.S. at 102)). The Supreme Court has warned, “[i]f this standard is difficult to meet, that
is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing
6
a complete bar on federal-court relitigation of claims already rejected in state court
proceedings.” Harrington, 562 U.S. at 102.
The clearly established federal law governing Hurley’s sufficiency of the evidence
challenge comes from Jackson v. Virginia: “[T]he relevant question is whether, after
reviewing 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.”
443 U.S. at 319. We have held that Pennsylvania’s standard for reviewing sufficiency of
the evidence — the standard the Superior Court applied here — “do[es] not contradict
Jackson.” Eley, 712 F.3d at 848.
The Superior Court’s application of Jackson to Hurley’s claim was not
unreasonable because it carefully considered the elements of each crime of conviction,
listed what facts were found to satisfy each element, and concluded that a rational jury
could convict Hurley of each crime beyond a reasonable doubt.
The Superior Court chronicled Jessica’s testimony of Hurley’s abuse: showing
ten-year-old Jessica pornography, masturbating in front of her, taking her clothes off and
rubbing his penis on her, licking her, penetrating her with his fingers, and forcing her to
perform oral sex. In addition to Jessica’s own testimony, Jessica’s mother testified that
she had seen Hurley go into Jessica’s bedroom at night; she had thought his nighttime
visits were for the purpose of “say[ing] prayers,” something she had encouraged. App.
204. Jessica’s brother also testified that he had seen Hurley enter her bedroom at night.
The Superior Court noted that the only testimony contradicting Jessica’s was that of
7
defense expert Dr. Labellarte, and his testimony was limited to his opinion that repressed
memory is not scientifically acceptable.
The Superior Court found that the record supported the conclusion that Jessica’s
memories were not repressed and revived, but instead that Dr. Lane-Loney asked open-
ended questions and Jessica “voluntarily disclosed that Hurley had molested her.” App.
209. The Superior Court held:
We see no grounds for disturbing the jury’s findings of fact because the
victim’s eyewitness testimony was corroborated by the testimony of her
mother and brother, and not directly contradicted by eyewitness testimony,
but only indirectly by Dr. Labellarte’s expert testimony. The jury was free
to accept any or all of the testimony presented. Thus the trial court did not
abuse its discretion in finding that the verdict was not shocking to one’s
sense of justice.
App. 215.
Hurley argues that the Superior Court’s determination that Jessica’s memories
were not repressed is an unreasonable determination of the facts, and thus is not entitled
to deference under AEDPA. See 28 U.S.C. § 2254(d)(2). Specifically, Hurley takes issue
with the Superior Court’s characterization that Jessica had “bottled-up” her memories and
“chose” not to disclose the abuse for years. Hurley Br. 32–33. Hurley focuses on two of
Jessica’s statements, arguing they prove she had no memory of the abuse until May 2001:
first, her statement that “this cloud had been lifted and suddenly everything was there,
like it was all just there,” Hurley Br. 33; App. 68, and second, her statement that her
memories had been “under a blanket, and the blanket was lifted.” Hurley Br. 33; App.
71. Hurley contends that Jessica had no memory of the abuse between 1997 and May
2001, and therefore his convictions are based on insufficient evidence.
8
Hurley’s argument is foreclosed, however, by the double layer of deference that
AEDPA demands. On the first layer of deference, we ask if a rational jury could have
convicted Hurley of sexually abusing Jessica. See Eley, 712 F.3d at 853. The jury was
presented with the victim’s graphic testimony that her uncle had repeatedly sexually
abused her throughout the summer of 1997. She testified that she failed to tell anyone of
the abuse until years later because she did not want to hurt her mother or her uncle.
Instead, she coped with the abuse by developing an eating disorder so severe that she lost
nearly half of her body weight and was hospitalized for six weeks. After a breakdown in
school, she divulged the abuse to her psychologist. There is no evidence that techniques
such as hypnosis were used to draw out the memories. A rational jury could have
believed that Jessica chose to keep the abuse to herself, not because she had repressed it
so deeply that she had forgotten it occurred and then subsequently testified based on
faulty memory, but because she wanted to avoid hurting her family.
Adding the second layer of deference, we ask if it was objectively unreasonable
for the Superior Court to conclude that a rational jury could have convicted Hurley of
sexual abuse. We hold it was not. Juries are granted “broad discretion in deciding what
inferences to draw from the evidence presented at trial,” and courts of appeals should not
“unduly impinge on the jury’s role as factfinder.” See Coleman v. Johnson, 566 U.S. 650,
655 (2012). Furthermore, this broad grant of discretion is a general rule, and “[t]he more
general the rule, the more leeway courts have” in determining whether clearly established
federal law has been unreasonably applied. Yarborough, 541 U.S. at 664. Even if we
disagreed with the jury’s guilty verdict, we could only grant habeas relief if the Superior
9
Court’s decision to uphold the verdict was objectively unreasonable. We hold it was not
objectively unreasonable for the Superior Court to conclude that a rational jury could
have convicted Hurley.
IV.
For the foregoing reasons, we will affirm the District Court’s denial of habeas
corpus relief.
10
| {
"pile_set_name": "FreeLaw"
} |
418 F.Supp. 70 (1976)
Leonard SERPIELLO and Gloria Serpiello, his wife,
v.
The YODER COMPANY
v.
WESTMORELAND METAL COMPANY.
Civ. A. No. 74-1232.
United States District Court, E. D. Pennsylvania.
June 30, 1976.
*71 Joseph Lurie, Philadelphia, Pa., for plaintiffs.
Joseph V. Pinto, Philadelphia, Pa., for Yoder.
John F. McElvenny, Philadelphia, Pa., for Westmoreland.
MEMORANDUM
BECHTLE, District Judge.
Plaintiffs brought this products liability action to recover for personal injuries suffered in an industrial accident involving a metal chopping machine manufactured by the Yoder Company ("Yoder"). Relying on the theory of strict liability as contained in § 402A of the Restatement (Second) of Torts (1965),[1] plaintiffs alleged that the chopping machine was defective in design and unreasonably dangerous to users. After a trial, the jury returned a verdict in favor of Yoder. Plaintiffs now seek a new trial, contending that the Court erred in its charge to the jury by using "language which tracts negligence concepts" in an action based on the theory of strict liability. Since we believe that the jury was properly instructed, the motion will be denied.
The first prong of plaintiffs' three-pronged argument is that the Court should not have instructed the jury that it was necessary to find that the chopping machine was unreasonably dangerous in order for plaintiffs to recover. They rely on Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa.1975), wherein Chief Justice Jones "held" that it is improper to charge a jury that a defect must be found to be unreasonably dangerous to the user as a prerequisite to recovery. Such reliance is misplaced as Chief Justice Jones' opinion in Berkebile, for the carefully articulated reasons set forth by my colleague Judge Huyett, in Beron v. Kramer-Trenton Co., 402 F.Supp. 1268, 1276-1277 (E.D.Pa.1975), aff'd, 538 F.2d 318 (3d Cir. 1976) (per curiam), is not the law of Pennsylvania. Accord, Posttape Associates v. Eastman Kodak Co., 537 F.2d 751 (3d Cir. 1976); Bair v. American Motors Corp., 535 F.2d 249 (3d Cir. 1976) (per curiam); Zurzolo v. General Motors Corp., 69 F.R.D. 469 (E.D.Pa.1975) (Higginbotham, J.). Accordingly, plaintiffs' motion for a new trial on that ground must be denied.
The second and third prongs of plaintiffs' argument also rely on Berkebile. Specifically, plaintiffs contend that it was error to instruct the jury that Yoder was only legally obligated to produce a reasonably *72 safe chopping machine, rather than one wholly incapable of doing harm, and that it was error to instruct the jury that it should consider the foreseeability to Yoder of the normal and expected use of the machine, in determining whether the chopping machine was in a defective condition unreasonably dangerous to users because of its design and whether warnings should have been given. The short answer to plaintiffs' contentions is that, for the reasons stated in Beron, Berkebile does not control the instant case. Moreover, we believe that the language of § 402A and the comments thereto, as well as the relevant case law, thoroughly support our instructions to the jury.
Concerning the reasonably safe versus accident-proof problem, it is clear that § 402A does not "render the seller of a product an insurer against any and all injuries thereby caused." Beron v. Kramer-Trenton Co., supra, 402 F.Supp. at 1276. As stated by Judge Fullam in Dyson v. General Motors Corp., 298 F.Supp. 1064, 1073 (E.D. Pa.1969):
If, . . . a vehicle left the roadway accidentally and came to rest in a river, it could scarcely be argued that the manufacturer should have produced an automobile which would float. Similarly, it could not reasonably be argued that a car manufacturer should be held liable because its vehicle collapsed when involved in a head-on collision with a large truck, at high speed.
See Zurzolo v. General Motors Corp., supra, 69 F.R.D. at 471-472. Since a manufacturer is, on the one hand, not obligated to produce and sell an accident-proof product and is, on the other hand, not permitted, as far as § 402A liability is concerned, to produce and sell a product in a defective condition unreasonably dangerous to the user, it logically follows that a manufacturer need only produce and sell a reasonably safe product. The jury was instructed accordingly.
With respect to the foreseeability issue, plaintiffs contend that foreseeability is a "test of negligence" and that, by instructing the jury concerning foreseeability, the Court "converted the present case from one of strict liability to one of negligence." Had we instructed the jury to the effect that Yoder could not be held liable unless it could have reasonably foreseen the manner in which Leonard Serpiello's injury occurred, we would agree with plaintiffs' contention and grant a new trial. An examination of the charge, however, reveals that the jury was not so instructed. Rather, in accordance with § 402A, comment h, at 351-352,[2] the Court instructed the jury that Yoder could only be liable for injuries which occurred during the normal and expected use of the chopping machine. See Dorsey v. Yoder Co., 331 F.Supp. 753, 761, 768 (E.D.Pa.1971), aff'd mem., 474 F.2d 1339 (3d Cir. 1973). We further instructed the jury, again in accordance with comment h, that Yoder had a duty to warn users of dangers which could result from the normal and expected uses of the chopping machine and, conversely, that Yoder had no duty to warn users of dangers which could result from unforeseeable uses of the product. Foecker v. Allis-Chalmers, 366 F.Supp. 1352, 1355 (E.D.Pa.1973). Thus, the Court's instructions merely set forth the proper limits of Yoder's responsibility, which was measured by the uses of the chopping machine that were reasonably foreseeable by Yoder. See Eshbach v. W. T. Grant's and Co., 481 F.2d 940, 943 (3d Cir. 1973).
An appropriate Order will be entered.
NOTES
[1] § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
[2] Comment h to § 402A provides:
A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger (see Comment j), and a product sold without such warning is in a defective condition.
| {
"pile_set_name": "FreeLaw"
} |
67 B.R. 270 (1986)
Douglas R. PRINCE and Jane Prince, Official Unsecured Creditors' Committee, Plaintiff,
v.
Timothy J. CLARE, Defendant.
No. 84 C 7694.
United States District Court, N.D. Illinois, E.D.
October 30, 1986.
*271 David G. Lynch, Thomas F. Geselbracht, Rudnich & Wolfe, Chicago, Ill., for plaintiff.
Robert M. Foote, Patrick M. Kinnally, Murphy, Hupp, Foote & Mielke, David P. Peskind, David P. Peskind Ltd., Aurora, Ill., James E. Dahl, Michael H. Moirano, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
ANN C. WILLIAMS, District Judge.
The defendant in interpleader, the Official Unsecured Creditors' Committee of Douglas R. Prince and Jane Prince ("Committee"), moves this court to grant the Committee partial summary judgment on its breach of contract, conversion and unjust enrichment claims against the defendant Timothy J. Clare ("Clare"). Because the Committee was not the legal owner of the shares of the professional corporation in question at the time the alleged claims arose, the court denies the Committee's motion.
I
Factual and Procedural Background
On August 17, 1981, Douglas R. Prince ("Prince") and Jane Prince commenced proceedings before the United States Bankruptcy Court of this district in order to obtain reorganization pursuant to Chapter 11 of the United States Code. At that time, the bankruptcy court designated the Committee to administer the assets of the bankruptcy estate. One of the assets that vested in the bankruptcy estate at that time was the stock in Prince's professional corporation, Douglas R. Prince, D.D.S., M.S., Ltd. ("corporation"), the business of which was orthodontia. On November 4, 1983, the Bankruptcy Court confirmed Prince's Amended Disclosure Statement and Plan ("Plan") dated February 10, 1983.
Thereafter, on February 25, 1984, Prince entered into a written contract with Clare for the sale of Prince's corporation. Approximately *272 five months later, Clare refused to perform any further under the contract. A dispute has arisen between Prince, Clare and the Committee concerning their respective rights and obligations in and to the corporation after the bankruptcy proceedings and confirmation of the Plan.
On September 6, 1984, Prince initiated this action against Clare by filing a complaint seeking damages and a declaratory judgment. In the complaint, Prince alleges that Clare breached the contract reached with Prince, damaged Prince's orthodontic practice, and wrongfully retained several months' income from Prince's practice. In Clare's answer, he asserts that Prince did not have the "power or authority to sell" the corporation and that, consequently, the contract between Prince and Clare is void.
The Committee also filed an action against Clare. On September 28, 1984, in a complaint filed in the bankruptcy court, the Committee demands damages and injunctive relief for a variety of alleged wrongdoings by Clare. Clare offered to purchase the corporation from the Committee and the Committee allegedly accepted Clare's offer. The Committee claims in its complaint that Clare breached the purchase agreement with the Committee and that Clare wrongfully diverted assets of the bankruptcy estate.
On September 13, 1985, this court allowed Clare to file a counterclaim in interpleader against the Committee which required the Committee to assert its claims against Clare in this action. The Committee then moved for withdrawal of reference of its adversary action against Clare pending in the bankruptcy court. This court granted the Committee's motion.
The Committee now moves this court for partial summary judgment against Clare pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Committee claims no genuine issues of material fact exist with respect to its breach of contract, conversion and unjust enrichment claims against Clare. In a memorandum filed in response to the Committee's motion, Prince correctly states that the critical issue to be decided at this stage is the ownership of the corporation after the bankruptcy court confirmed the Plan. Consequently, the court will address that issue first.
II
Ownership of the Corporation After Confirmation of the Plan
Except as otherwise provided in the Plan or the order confirming the Plan, the confirmation of the Plan vested all of the property of the bankruptcy estate in the debtor Prince. 11 U.S.C. § 1141(b) (1978); In re Auto West, Inc., 43 B.R. 761, 763 (D.Utah 1984); United States v. Redmond, 36 B.R. 932, 934 (D.Kan.1984). The purpose of revesting the property in the debtor is to make the debtor in possession master of his own fate in the commercial world, free of the press of those creditors to whom he was indebted before he became a Chapter 11 supplicant. In re NJB Prime Investors, 3 B.R. 553, 556 (Bankr.S.D.N.Y. 1980). After the Plan was confirmed, the bankruptcy court no longer controlled disposition of such property; after confirmation, Prince's control of the revested property was the same as if no bankruptcy case had ever been filed, except to the extent that the Plan or order confirming the Plan provides otherwise. In re Mason, 45 B.R. 498, 500 (Bankr.D.Ore.1984).
Since the Plan does not provide otherwise, legal title to the corporation revested in Prince after confirmation of the Plan. Nowhere in the Plan does it explicitly state that the Committee is to retain legal ownership of the corporation after confirmation. On pages 45 and 46 dealing with the "Professional Corporation," the Plan merely requires Prince to deposit in the creditors' fund the nominal value of the corporation's stock. The Plan provides that if the value of the stock is contested, the bankruptcy court should hold a valuation hearing. No mention is made of the legal ownership of the stock itself.
In fact, sections of the Plan can be interpreted as affirmatively providing that *273 Prince was the legal owner of the corporation after confirmation of the Plan. At page 3, the Plan proposes that "the debtors sell or retain the property, real and personal, free and clear, according to the appraisal value of the property." (emphasis added). Certainly it is reasonable to assume that if the Plan provided that Prince could sell his property, Prince would first have to possess title to that same property before he could sell it.
In its reply to Clare's response to its motion for summary judgment, the Committee asserts for the first time that it was the owner of the beneficial interest in the corporation. Assuming this to be the case, the Committee's motion for summary judgment on the contract claim still fails. A party can transfer to another only those interests that that party possesses. The Committee's breach of contract claim alleges that the Committee and Clare entered into a contract with respect to the Prince practice itself. The Committee, however, did not own the Prince practice or corporation itself; as it states in its reply, the Committee only owned a beneficial interest in the corporation. The Committee cites no cases which state that a party who has contracted to sell an asset to another can recover for breach of contract when that party did not own the asset at the time the contract was formed and has not obtained the asset since. Consequently, the court denies the Committee's motion with respect to its breach-of-contract claim.
The court also denies the Committee's motion on the conversion claim. As the Committee states in its original motion, the essence of conversion is not the acquisition of the property by the wrongdoer, but a wrongful deprivation of the owner's right to possess it. Dickson v. Riebling, 30 Ill. App.3d 965, 967, 333 N.E.2d 646, 648 (1975). In its motion, the Committee charges that "Clare has flagrantly deprived the Committee of its right to operate the Prince practice." Committee's Motion for Summary Judgment at p. 9. As already indicated, however, the Committee did not have the right to operate the Prince practice. Prince had that right. The Committee at best had a "beneficial interest" in the corporation, and does not allege in its original motion that Clare deprived it of that.
Finally, the court addresses the unjust enrichment claim. The action is maintainable wherever one party has received money or its equivalent under circumstances in which, according to the dictates of equity and good conscience, the party ought not retain such benefit. Rutledge v. Housing Authority, 84 Ill.App.3d 1064, 44 Ill.Dec. 176, 179, 411 N.E.2d 82, 85 (1980). First, the court notes that it is reluctant to make a decision on such an equitable claim without the benefit of hearing the testimony of the parties involved. Second, the Committee's motion again states that Clare unjustly took and retained the "Prince practice" from the Committee. The court has already stated why the Committee did not own the practice at the relevant time in this case. Finally, the court notes that the Committee is still entitled to the fair value of the corporation from Prince himself, so no great injustice appears to be done to the Committee by denying its motion.
In its reply to Clare's response to its motion, the Committee raised a number of legal theories that were not raised in its original motion. The reply is limited to those matters raised in the original motion. Consequently, the court will not address these other legal theories.
CONCLUSION
For the foregoing reasons, the Committee's motion for summary judgment is denied. A status hearing in this case is set for November 13, 1986 at 9:30 a.m.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2701
___________
Edward Allen Moore, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Ernest-Jackson, D.D.S.; James * District of Missouri.
Keith, M.D.; Randee Kaiser; *
Karen Cornell; Ralf Salke; * [PUBLISHED]
Gerald Bommel; Steve Long; *
John Sydow; Judy P. Draper; *
Dora Schriro; William Wade, M.D.; *
Richard Washington; David Dormire; *
Michael Groose; ARA Services, *
doing business as Correctional *
Medical Systems, *
*
Appellees. *
___________
Submitted: March 24, 1997
Filed: August 22, 1997
___________
Before BOWMAN, BRIGHT and WOLLMAN, Circuit Judges.
___________
PER CURIAM.
Appellant Edward Allen Moore, an inmate in Missouri, filed a pro se
§ 1983 action against several defendants for deliberate indifference to his
serious dental needs. The district court dismissed ten defendants pursuant
to Fed.R.Civ.P. 4(m) (Time Limit for Service), then granted the remaining
defendants summary judgment. Moore challenges these dismissals. He also
asserts the district court erred by denying his motion to file an amended
complaint as well as his motion for sanctions. Finally, Moore contends
there is no final order regarding his medical malpractice claim and third
party contract claim. We affirm in part and reverse in part.
BACKGROUND
Correctional Medical Services (CMS) provides medical services for the
Missouri penitentiary system through a contract with the Department of
Corrections. On May 4, 1994, Moore submitted an Internal Resolution
Request (IRR) seeking medical services and claiming that he "submitted a
Medical Services Request a week ago and . . . still have not received any
medical services." Dist. Ct. Doc. (DCD) #55, Exh. 4, at 5. On June 7,
Moore submitted an Inmate Grievance in which he stated: "I submitted a
request for medical services the last week of April 1994 and I still have
not received any medical services. . . . I request health services from a
qualified health service professional." Id., Exh. 2, at 3. The parties
dispute whether Moore filed the referenced earlier Medical Service Request
(MSR) complaining of dental problems. Moore did not detail his specific
medical need in this document, or any other document mentioned here, until
August 25.
On June 8, appellee Ralf Salke, Regional Administrator for CMS,
responded to Moore's IRR of May 4 and advised Moore to submit his MSR
directly to Cornell. DCD #55, Exh. 4, at 2. On July 15, appellee Karen
Cornell, Administrator at Jefferson City Correctional Center, responded to
Moore's June 7 Grievance with a letter stating that she did not locate an
MSR filed by Moore in April. DCD #33, Exh. A-8. Cornell then advised
Moore to "submit an MSR and discuss it with the nurse." Id.
-2-
On July 14, Moore wrote to Steve Long, Assistant Director of the
Missouri Department of Corrections, and detailed his efforts to obtain
medical treatment. DCD #44, Exh. M. That letter eventually forwarded to
Salke.
On July 15, Moore filed an Inmate Grievance Appeal. DCD #44, Exh.
J. Again, he detailed his attempts to receive medical treatment.
On August 2, Salke wrote a letter to Moore regarding his IRRs and
Grievances. DCD #44, Exh. J at 2. Salke again advised Moore that "if you
feel you are in need of medical services and your MSR is not being
forwarded accordingly, please direct it to Karen Cornell, . . . so she may
arrange to see you within the Health Care Unit." Id. Salke copied this
letter to Cornell and Appellee Dr. James Keith. Salke wrote Moore another
letter on August 3 regarding Moore's letter to Long. DCD #44, Exh. P.
On August 11, Moore submitted another Inmate Grievance Appeal in
which he stated: "I submitted a Medical Service Request (MSR) the last
week of April 1994. I have since submitted other MSR's, an IRR, an Inmate
Grievance, an Inmate Grievance Appeal, and I have written Mr. Steve Long.
. . . To this day I have not been afforded access to health services." DCD
#44, Exh. K. The Department Director Response from Judy Draper states that
"[w]hile it is possible that occasionally an MSR is misplaced, I do not
find this is a trend or that it occurs frequently." Id.
On August 19, 22 and 25, Moore submitted MSRs complaining of a
toothache. DCD #33, Exhs. A-2, A-3, A-4. Moore asserts he also sent a
letter to Cornell on August 25 complaining that MSRs were being discarded,
thereby preventing him from getting treatment for an infected tooth causing
him tremendous pain. Moore provides a copy of that letter. DCD #44, Exh.
L. Cornell, however, denies receiving that letter and states she was "not
personally aware of Mr. Moore's dental problems in the summer or fall of
1994." DCD #33, Exh. B, at 2. There was no response to this letter.
-3-
At 7:00 p.m. on August 26, Moore submitted a more detailed MSR which
stated: "infected tooth, swelling to face/neck, fever, discharge eye &
nose, intense pain." DCD #33, Exh. A-5. A nurse examined Moore later that
evening after Moore persuaded a prison guard to summon medical help. The
nurse made the following notations under "Nursing Assessment": "S) Tooth
died back in June, started hurting back in April. Infection started about
3 wks ago. Had MSRs, Grievances, etc. to see medical." DCD #33, Exh. A-5.
The nurse noted that Moore complained of "severe pain" and that he had not
been seen for this problem. Id. She observed swelling of the jaw,
provided Tylenol for pain relief, and referred Moore to dental. Id.
Appellee Dr. Ernest Jackson, a dentist, stated that "those symptoms were
indicative of the tooth being inflamed with a possible infection in the
pulp of the tooth. Once a tooth has infection in the pulp it is almost
always rendered non restorable." DCD #33, Exh. A, at 3.
The next morning, Moore filed another MSR complaining of "intense
pain," "swelling" and "discharge." Id. at Exh. A-6. There was no
response. Moore eventually filed suit on November 4, 1994, and included
the names and addresses of all the defendants in his complaint. A dental
appointment was then made for him on December 2. On that date, Jackson
extracted Moore's #14 tooth due to irreversible pulpitis.
After Moore filed suit, appellees moved for summary judgment.
Moore's request to amend his complaint was denied. On February 27, 1996,
United States Magistrate Judge William A. Knox recommended granting
appellees Jackson's and Keith's motions for summary judgment, but denying
appellees Salke's, Cornell's and CMS's motions for summary judgment.
Despite this recommendation, the district court granted summary judgment
in favor of all appellees. Moore appeals.
-4-
I.
Moore first challenges the district court's dismissal of numerous
defendants pursuant to Federal Rules of Civil Procedure 4(m).1 The
district court granted Moore permission to proceed in forma pauperis. DCD
#5, at 3. Moore then requested that the court direct the United States
Marshal to effect service to the defendants. DCD #8. The district court
ordered the United States Marshal to effect service, but only after Moore
completed waiver of service forms. DCD #9. Moore contends that this
constitutes error. We agree.
We review the district court's decision to dismiss an action for
untimely service for an abuse of discretion. Edwards v. Edwards, 754 F.2d
298, 299 (8th Cir. 1988) (per curiam). 28 U.S.C. § 1915(d) states that,
for purposes of proceeding in forma pauperis, "[t]he officers of the court
shall issue and serve all process, and perform all duties in such cases."
This language is compulsory. Mallard v. United States Dist. Court for
Southern Dist. of Iowa, 490 U.S. 296, 302 (1989) ("Congress . . . knew how
to require service when it deemed compulsory service appropriate.").
Submitting a waiver of service is a component of "all process" and §
1915(d) compels the officers of the court to perform "all duties"
associated with such process. "So long as the prisoner has furnished the
information necessary to identify the defendant, the marshal's failure to
effect service 'is automatically good cause with the meaning of
[Fed.R.Civ.P.
1
Rule 4(m) states:
Time Limit for Service. If service of the summons and complaint
is not made upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after notice to
the plaintiff, shall dismiss the action without prejudice as to that defendant
or direct that service be effected within a specified time; provided that if
the plaintiff shows good cause for the failure, the court shall extend the
time for service for an appropriate period.
-5-
4(m)].'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal
citation omitted).
Moore's complaint lists all defendants and their addresses. DCD #1,
at 2B. Accordingly, Moore's cause of action against these defendants
cannot be dismissed for failure to complete waiver of service forms because
an inmate such as Moore, proceeding in forma pauperis, is not required to
do so. Waiver of service is the responsibility of the United States
Marshal in these settings.2
II.
Moore next argues that the district court erred by granting summary
judgment. To succeed on his medical claims, Moore must prove by a
preponderance of the evidence a "deliberate indifference to serious medical
needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Moore must
demonstrate that the medical deprivation was objectively serious and that
prison officials subjectively knew about the deprivation and refused to
remedy it. Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). A
medical need is serious if it is "obvious to the layperson or supported by
medical evidence, like a physician's diagnosis." Aswegan v. Henry, 49 F.3d
461, 464 (8th Cir. 1995).
The district court granted summary judgment for all five remaining
defendants, despite the recommendation of the magistrate judge that summary
judgment against Salke, Cornell and CMS should be denied. "We review a
grant of summary judgment de novo; like the district court, we must
construe the evidence in the light most favorable to the non-moving party."
Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.
2
Of course, a district court does not have to serve defendants if "it is determined
the lawsuit is baseless and that the plaintiff cannot make any rational argument in law
or fact entitling him to relief." Williams v. White, 897 F.2d 942, 944 (8th Cir. 1990).
-6-
1996). Summary judgment is an extreme remedy, to be granted only if no
genuine issue exists as to any material fact. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Viewing the facts in the light most favorable to Moore, it took from
April 1994 until December 1994 for Moore to receive adequate treatment for
a toothache. The tooth became infected and ultimately required extraction.
Something appears wrong with the dental care system. The question before
us is whether Moore has a civil rights claim that survives summary
judgment. We think it does.
A.
We affirm the district court's grant of summary judgment for
appellees Salke and Keith. A careful review of the record reveals that
there is no evidence they knew about Moore's serious medical condition,
"refused to verify underlying facts that [they] strongly suspected to be
true, or declined to confirm inferences of risk that [they] strongly
suspected to exist . . . ." Farmer v. Brennan, 511 U.S. 825, 843 n.8
(1994).
B.
We reverse the district court's grant of summary judgment for
appellee Jackson. Jackson, a dentist, asserts that he was unaware of
Moore's request for medical care until Moore filed suit in November, 1994.
The district court asserted that Moore "provided no evidence to show that
any of the defendants knew about his need for dental care prior to August
25, 1994, when he sent a letter to defendant Cornell." DCD #61, at 2. We
disagree.
It is reasonable to infer that Moore filed an MSR in April
complaining of tooth pain when we view the facts in the light most
favorable to Moore. This is supported by the fact that his tooth was
infected and ultimately required extraction. It is a
-7-
reasonable inference from the record, then, that Moore was in pain in late
April as a result of his tooth. In addition, we have more than Moore's
mere assertion that he filed the MSR and that it was lost. Appellees
concede MSRs may be lost or misplaced. DCD #3, Attachment (Inmate
Grievance, Response). Furthermore, Moore filed grievances and an IRR
complaining that his April MSR was lost. Assuming Moore filed the April
MSR, it is a reasonable inference from the record that Jackson knew about
Moore's condition.
Furthermore, under the "Nursing Assessment" section of Moore's August
19 MSR (received by the dental department on August 25) there is a
handwritten note, "#14 TE", followed by a number 1 with a circle around it.
DCD #33, Exh. A-2. While we do not know what the number and circle
signify, it is clear from reviewing all the medical records that "#14"
refers to the tooth that was eventually extracted, and that "TE" may mean
"Tooth Extraction." See, e.g., DCD #33, Exh. A-7, at 2 (containing
"Services Rendered" form regarding extraction of Moore's tooth); DCD #33,
Exh. A-7, at 3 (containing "Surgical/Medical Procedure Authorization"
form). Moore asserts that only dentists may authorize tooth extractions.
While there may be other explanations for this notation, viewing the
evidence in the light most favorable to Moore requires us to conclude there
is a material issue of fact regarding whether Jackson knew about Moore's
dental problems before Moore filed suit, but failed to ensure that Moore
was treated until December.3
3
We also disagree with the district court's grant of summary judgment because
Moore failed to present verifying medical evidence establishing the detrimental effect
of the delay in his dental treatment. Crowley, 109 F.3d at 502. On August 26, Moore's
"symptoms were indicative of the tooth being inflamed with a possible infection in the
pulp of the tooth. Once a tooth has infection in the pulp it is almost always rendered
non restorable." DCD #33, Exh. A, at 3 (emphasis added). According to this
diagnosis, it is possible to save a tooth that has infection in the pulp. Viewing the
evidence in the light most favorable to Moore, the three month delay in treatment
ensured the tooth would require extraction. Thus, because immediate dental care might
have saved Moore's tooth it is up to the jury, not the trial court, to determine if the three
month delay exacerbated Moore's condition.
-8-
D.
We also reverse the grant of summary judgment for appellee Cornell.
The district court correctly determined, for purposes of reviewing the
motion for summary judgment, that Moore sent a letter to Cornell on August
25 detailing the pain resulting from his tooth.4 The district court
granted summary judgment for Cornell, however, on the basis that "[t]he
next day, a nurse examined plaintiff, . . . Thus, defendant Cornell was
justified in believing plaintiff's problem had been remedied." DCD #61,
at 2. This conclusion, however, contradicts Cornell's affidavit in which
she denies receiving Moore's August 25 letter, and states that she was "not
personally aware of Mr. Moore's dental problems in the summer or fall of
1994." DCD #33, Exh. B, at 2. In short, Cornell could not be "justified
in believing plaintiff's problem had been remedied" if she denies any
knowledge that a dental problem existed. We agree with the magistrate
judge who noted that Moore "provided sufficient evidence to show that
defendant Cornell knew about his need for dental care in August 1994, that
she had a duty to ensure he received treatment and that she failed to take
action. Whether defendant Cornell actually received plaintiff's letter
requesting dental care in August 1994, is a question of fact . . . ." DCD
#54, at 3-4.
E.
We also reverse the grant of CMS's motion for summary judgment. CMS
argues, and the district court held, that Moore failed to demonstrate a CMS
policy or custom for destroying or ignoring MSRs that led to a
constitutional deprivation. We
4
Moore wrote in part: "My most serious problem is an infected tooth. . . . I am
now experiencing pain on the entire left side (the side with the infected tooth) of my
face. My left eye even hurts. I am having a discharge from my left nostril that smells
like dead fish. . . . The situation has become urgent." DCD # 44, Exh. L.
-9-
agree with the magistrate judge, however, who noted that Moore presents
"sufficient evidence from which a jury could find that . . . MSRs were
destroyed or mishandled and that as a result, serious medical needs were
unaddressed; . . . ." DCD #54, at 4.
Appellees acknowledge that it is possible for MSRs to be misplaced.
DCD #44, Exh. K. Indeed, appellees concede that "[i]t is . . . difficult
with the large number of dental MSRs to determine the real level of need,
and avoid missing legitimate problems." DCD #33, Exh. A, at 3. Viewing
the evidence in the light most favorable to Moore, he submitted an MSR in
April. That MSR was misplaced or destroyed, consequently, he received no
response to it. Further support for Moore's claim that CMS's custom or
policies resulted in the denial of medical care is the lack of response to
his August 27 MSR.
In fact, Moore only received dental care for his infected tooth after
he complained to a prison guard and filed this lawsuit. It is appropriate
for a jury, not the courts, to determine whether CMS had a custom or
procedure of misplacing, ignoring or destroying MSRs with resulting harm
to the inmates.
The district court determined, alternatively, that even if "MSRs are
destroyed pursuant to an institutional custom and [Moore's] constitutional
injuries resulted from that custom . . . that [Moore's] claims still fail."
DCD #61, at 2. The district court supported this statement by observing
that Moore failed to follow Salke's advice to submit his MSR directly to
Cornell. As an initial matter, we disagree with the district court's
conclusion that there is no issue for a jury when an inmate complains to
prison officials of a medical need, the officials intentionally destroy
such communications without acting on them pursuant to an institutional
custom, and the inmate's tooth becomes infected, dies and is finally
extracted more than seven months after the initial complaint.
-10-
Furthermore, a reasonable reading of Salke's letter to Moore suggests
that Moore followed Salke's advice rather than ignored it. Salke informed
Moore that if he is "in need of medical services and [his] MSR is not
being forwarded accordingly, please direct it to Karen Cornell, . . . ."
DCD #44, Exh. J, at 2. This statement appears to refer specifically to the
April MSR, which was the basis of Moore's IRR reviewed by Salke. Moore
produced a copy of a letter to Cornell regarding that MSR and was seen by
a nurse. He filed a new MSR on the following day seeking treatment.
Although he did not file this MSR with Cornell, a reasonable inference from
the record is that Moore believed he should file his new MSR through normal
channels because Salke's letter advising Moore to contact Cornell concerned
only his April MSR. Accordingly, we reverse the grant of summary judgment
in favor of CMS.5
5
Although we cannot affirm summary judgment for Jackson, Cornell or CMS on
the basis provided by the district court, we review the record to determine if summary
judgment can be affirmed on other grounds. One reason appellees provide for not
treating Moore before December 2 is because "[t]he fact that the dental unit did not
receive any further MSRs [after Moore was seen by a nurse on August 26] complaining
of severe pain in the months of September, October and November . . . gave rise to the
presumption of the dental assistant that Mr. Moore's tooth no longer had detectable
nerve enervation, and was thus not a medical emergency." DCD # 33, Exh. A, at 3-4.
This statement is misleading. Moore filed a MSR complaining of severe pain the day
after the nurse saw him. Furthermore, appellees' representations, when examined in
context of other statements, place Moore in a disturbing Catch-22 if he wishes to
receive dental treatment. See Joseph Heller, Catch-22 (Simon and Schuster 1961)
(1955). On the one hand, appellees chastise Moore's numerous attempts in April-
August to bring attention to his allegedly misplaced MSR as impeding dental treatment:
The Jefferson City Correctional Center has an inmate population
of over 2,000. . . . Multiple submissions of the same MSR complaint will
not accomplish obtaining an appointment earlier. . . . The repeated
submission of MSRs and grievances only impedes service in that each
MSR and grievance takes away valuable service time to process
unnecessary paperwork.
Appellees' Brief at 5. On the other hand, Moore's decision to file only one MSR after
he was examined on August 26 "gave rise to the presumption . . . that Mr. Moore's
tooth . . . was . . . not a medical emergency." DCD #33, Exh. A, at 3-4. This
-11-
III.
Our review of the district court order confirms that the district
court did not address Moore's medical malpractice claim against Dr. Jackson
or his third party beneficiary contract claim against CMS. Accordingly,
these issues remain before the district court.
IV.
Moore also asserts that the district court erred by denying his
motion to amend his complaint. The district court's denial was without
prejudice. "[L]eave [to amend a complaint] shall be freely given when
justice so requires." Fed.R.Civ.P. 15(a). "Leave to amend should be
granted absent a good reason for the denial, such as undue delay, bad
faith, undue prejudice to the nonmoving party, or futility." Fuller v.
Secretary of Defense of the United States, 30 F.3d 86, 88 (9th Cir. 1994).
We review the district court's decision for an abuse of discretion. Id.
Moore sought to amend his complaint by adding three defendants
shortly after appellees moved for summary judgment. The magistrate judge
denied that request "without prejudice to reconsideration if his claims
survive . . . summary judgment." DCD #43. The denial did not constitute
an abuse of discretion.
V.
contradiction speaks for itself.
-12-
Finally, Moore argues that the district court erred by denying his
motion for discovery sanctions. We review the district court's denial to
compel discovery for a gross abuse of discretion. Kinkead v. Southwestern
Bell Telephone Co., 49 F.3d 454, 457 (8th Cir. 1995). After a careful
review of the record, we conclude that the district court did not abuse its
discretion.
CONCLUSION
Accordingly, we affirm the district court's denial of Moore's motion
to file an amended complaint and his motion for sanctions. We also affirm
the grant of summary judgment for Salke and Keith. We reverse the district
court's grant of summary judgment for Jackson, Cornell and CMS, as well as
the dismissal of defendants pursuant to Fed.R.Civ.P. 4(m). Moore's medical
malpractice claim and third party contract claim remain before the district
court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-13-
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7682
EUGENIO DUQUESNE,
Petitioner - Appellant,
versus
JENNIFER LANGLEY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-hc-00424-BO)
Submitted: March 28, 2007 Decided: May 31, 2007
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eugenio Duquesne, Appellant Pro Se. Mary Carla Hollis, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugenio Duquesne seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2254 (2000) petition. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Duquesne has
not made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
- 2 -
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: Misc. No. 08-0444 (TFH)
PETITIONERS SEEKING Civil Action Nos.
HABEAS CORPUS RELIEF
IN RELATION TO PRIOR 02-cv-1130, 04-cv-1135, 04-cv-1144, 04-cv-1194, 04-cv-1227,
DETENTIONS AT 04-cv-1254, 05-cv-0023, 05-cv-0345, 05-cv-0490, 05-cv-0520,
GUANTANAMO BAY 05-cv-0526, 05-cv-0584, 05-cv-0586, 05-cv-0640, 05-cv-0714,
05-cv-0723, 05-cv-0764, 05-cv-0765, 05-cv-0878, 05-cv-0833,
05-cv-0887, 05-cv-0888, 05-cv-0891, 05-cv-0998, 05-cv-1001,
05-cv-1009, 05-cv-1124, 05-cv-1237, 05-cv-1242, 05-cv-1243,
05-cv-1246, 05-cv-1311, 05-cv-1487, 05-cv-1493, 05-cv-1505,
05-cv-1509, 05-cv-1635, 05-cv-1667, 05-cv-1678, 05-cv-1714,
05-cv-1779, 05-cv-1806, 05-cv-1864, 05-cv-2029, 05-cv-2104,
05-cv-2197, 05-cv-2216, 05-cv-2336, 05-cv-2367, 05-cv-2369,
05-cv-2384, 05-cv-2385, 05-cv-2386, 05-cv-2452, 05-cv-2458,
05-cv-2466, 05-cv-2479, 06-cv-1675, 06-cv-1677, 06-cv-1678,
06-cv-1679, 06-cv-1683, 06-cv-1687, 06-cv-1763, 06-cv-1768,
06-cv-1769, 08-cv-0864, 08-cv-1104, 08-cv-1185, 08-cv-1221,
08-cv-1223, 08-cv-1628, 08-cv-1733
MEMORANDUM OPINION
Before the Court are 105 habeas petitions from aliens who were detained at the United
States Naval Base in Guantanamo Bay, Cuba (“Guantanamo”) and have since been transferred or
released to a foreign country. Their petitions raise one of the many questions left unanswered by
the United States Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008) — what
happens to a Guantanamo detainee’s habeas claim once he is transferred or released. Although
Boumediene held that aliens detained at Guantanamo have the privilege of habeas corpus, id. at
2262, the Supreme Court did not expound on the privileges of those detainees once they leave
Guantanamo. Such issues were left to “the expertise and competence of the District Court to
address in the first instance.” Id. at 2276. Subsequently, this Court, pursuant to its authority as
the coordinator and manager of habeas cases involving Guantanamo detainees, ordered former
Guantanamo detainees with pending habeas petitions (“Petitioners”) and the United States
Government (“Respondents”) to each file a consolidated brief addressing whether the United
States District Court for the District of Columbia’s “jurisdiction over a habeas corpus petition
filed by a foreign national detained at Guantanamo Bay, as recognized in Boumediene v. Bush,
128 S. Ct. 2229 (2008), is eliminated by the petitioner’s transfer or release from Guantanamo
Bay.” Order (Jan. 12, 2009) [Dkt. No. 79].
Upon consideration of the multiple briefs filed by the parties, the 105 habeas petitions, as
well as the entire record herein, the Court finds that the District Court no longer has jurisdiction
over Petitioners’ habeas petitions. Petitioners are no longer in United States custody and fail to
demonstrate that they suffer from collateral consequences of their prior detention that the Court
can remedy. Accordingly, the Court will dismiss their habeas claims as moot.
BACKGROUND
Petitioners are 105 aliens who share a basic set of facts. See Joint Status Report (Nov. 9,
2009) [Dkt. No. 109]; Sealed Joint Status Report (Nov. 9, 2009) [Dkt. No. 110]; Errata to Joint
Status Report (Dec. 11, 2009) [Dkt. No. 116].1 The United States Government detained them at
Guantanamo and later transferred or released them to various foreign countries. See Pet’rs’ Br.
at 19-20 (Feb. 6, 2009) [Dkt. No. 89]. While detained at Guantanamo, each alien petitioned the
United States District Court for the District of Columbia for a writ of habeas corpus.
On July 12, 2008, the Supreme Court held that the Suspension Clause “of the
Constitution has full effect at Guantanamo Bay.” Boumediene, 128 S. Ct. at 2262. Thus, the
1
There are a limited number of former Guantanamo detainees whose habeas petitions are
not pending before this Court under Miscellaneous Action No. 08-0444. The majority of those
petitioners were transferred or released from Guantanamo in the past four months.
2
aliens detained at Guantanamo “are entitled to the privilege of habeas corpus to challenge the
legality of their detention.” Id. The decision marked the first time the Supreme Court has “held
that noncitizens detained by our Government in territory over which another country maintains
de jure sovereignty have any rights under our Constitution.” Id. Later in the opinion, the
Supreme Court concluded that the process Guantanamo detainees receive under the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, is not an adequate substitute for
habeas review. Id. at 2262-74. Accordingly, the language in § 7 of the Military Commissions
Act of 2006 (“MCA”), Pub. L. No. 109-336, 120 Stat. 2600, eliminating habeas review for
Guantanamo detainees “operates as an unconstitutional suspension of the writ.” Id. at 2240. In
the MCA’s absence, the Supreme Court indicated that Guantanamo detainees are entitled to
petition for habeas corpus under the federal habeas corpus statute, 28 U.S.C. § 2241. Id. at 2266;
see also Rasul v. Bush, 542 U.S. 466, 481 (2004) (holding that aliens being held at Guantanamo
“are entitled to invoke the federal courts’ authority under § 2241”). In order to reduce
administrative burdens, the Supreme Court allowed the Government to consolidate review of the
Guantanamo detainees’ habeas petitions in the United States District Court for the District of
Columbia. Boumediene, 128 S. Ct. at 2276.
On July 1, 2008, the District Court resolved by Executive Session to designate the
undersigned “to coordinate and manage proceedings in all cases involving petitioners previously
detained at Guantanamo Bay, Cuba, so that these cases can be addressed as expeditiously as
possible per the Supreme Court’s decision in Boumediene.” Order at 2 (July 3, 2008) [Dkt. No.
1]. Though former detainees were not explicitly mentioned in Boumediene, the habeas privilege
described in the decision applies to their claims. The federal habeas statute requires that a
3
habeas petitioner be “in custody under or by color of the authority of the United States.” 28
U.S.C. § 2241(c)(1) (2008). This requirement is satisfied if the petitioner was in United States
custody “at the time the petition was filed.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). At the
time they filed their habeas claims, Petitioners were in the physical custody of the United States
at Guantanamo, where the Suspension Clause “has full effect,” Boumediene, 128 S. Ct. at 2262.
Petitioners therefore initially met this minimum statutory threshold.
Nevertheless, Petitioners’ new circumstances raise the issue of mootness. When
Petitioners filed their habeas claims, the relief requested was clear — release from United States
custody at Guantanamo. Now, Petitioners no longer seek release from Guantanamo since they
have been transferred or released abroad. See Pet’rs’ Supp. Reply at 5-7 (Nov. 20, 2009) [Dkt.
No. 114]. Instead, Petitioners ask the Court to secure their release from foreign sovereigns, void
agreements between the United States Government and foreign sovereigns that impose
restrictions on them, or invalidate the United States Government’s prior determination that they
are enemy combatants. Id. But the federal courts are not necessarily able to provide such relief.
As the Supreme Court explained in Munaf v. Geren, decided the same day as Boumediene,
“[h]abeas is at its core a remedy for unlawful executive detention. The typical remedy for such
detention is, of course, release.” 128 S. Ct. 2207, 2221 (2008) (internal citations omitted).
In its role as manager and coordinator of these petitions, this Court is tasked with
resolving whether the petitions are now moot. On January 12, 2009, the Court ordered
Petitioners and Respondents to each file a consolidated brief addressing whether the District
Court maintains habeas jurisdiction over the petitions of Guantanamo detainees who have been
released or transferred to a foreign country. “[A] mootness issue quite clearly can be raised sua
4
sponte if not addressed by the parties.” Sannon v. United States, 631 F.2d 1247, 1250 (5th Cir.
1980). The federal habeas statute is also unambiguous that a federal court may dismiss a habeas
claim sua sponte if “it appears from the [habeas] application that the applicant or person detained
is not entitled” to the writ. 28 U.S.C. § 2243. On February 6, 2009, the parties filed
consolidated briefs. On February 23, 2009, each party filed a consolidated reply brief. During
the course of the Court’s deliberation, the United States Court of Appeals for the District of
Columbia Circuit issued multiple opinions interpreting Boumediene and clarifying the
substantive and procedural habeas rights of Guantanamo detainees. Subsequently, the Court
requested and received supplemental briefing from the parties.2
ANALYSIS
The question before the Court is not whether the District Court initially had jurisdiction
over Petitioners’ habeas claims, which was decided by Boumediene, but whether it still has
jurisdiction over the claims. Mootness is a concern for any petitioner with a pending habeas
claim who is released from United States custody. At all times during federal judicial
proceedings, a party must present “a case or controversy under Article III, § 2, of the
Constitution.” Spencer, 523 U.S. at 7.3 Otherwise, the party’s claim is moot. For a petitioner in
United States custody, the controversy is clear since he is attempting to secure his release from
2
The Court also reviewed and considered any motions to dismiss a habeas petition as
moot that Respondents filed in these cases, as well as oppositions to those motions.
3
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under
their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all
Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall
be a Party;--to Controversies between two or more States.” U.S. CONST. art. III, § 2.
5
the United States Government. Id. For a petitioner released from United States custody, the
case-or-controversy requirement is problematic because the remedy sought is more elusive.
Under habeas common law, a petitioner no longer in custody can prove he continues to present a
live case or controversy by demonstrating he suffers “some concrete and continuing injury other
than the now-ended incarceration . . . some ‘collateral consequence’ of the conviction” that is
“likely to be redressed by a favorable judicial decision.” Id. (citations and quotations omitted).
Petitioners address this mootness inquiry in two ways. First, they cite to the federal
habeas statute, 28 U.S.C. § 2241. Under § 2241(c), the writ of habeas corpus extends to
petitioners who are in United States custody. Some Petitioners aver that although they are no
longer physically detained by the United States at Guantanamo, they are being detained by
foreign governments at the behest of the United States. This constructive custody, they argue,
satisfies that statute’s custody requirement, thereby obviating the need for a mootness inquiry.
Second, regardless of whether they remain in custody, Petitioners claim they all suffer from
collateral consequences of their prior detention at Guantanamo that are concrete and redressable
by a federal court. Thus, despite their release, Petitioners argue that they continue to present a
live case or controversy under Article III, § 2.
A. “In Custody”
Petitioners claim that some former detainees remain in custody of the United States under
the federal habeas statute, even though they are no longer in the physical custody of the United
States at Guantanamo. Petitioners posit that if they remain in United States custody, there is no
need for a mootness inquiry. See Pet’rs’ Reply at 10 (Feb. 23, 2009) [Dkt. No. 94]. Custody and
jurisdiction are intertwined under the habeas statute. Section 2241 provides that the writ of
6
habeas corpus does not extend to a detainee unless he is “in custody” either “under or by color of
the authority of the United States,” “in violation of the Constitution or law or treaties of the
United States,” or in several other respects that the parties do not claim are relevant here. 28
U.S.C. § 2241(c). Consistent with this broad language, “courts have universally held that actual
physical custody of an individual by the respondent is unnecessary for habeas jurisdiction to
exist.” Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 47 (D.D.C. 2004)). Rather, the statute provides
“for habeas jurisdiction where the official possesses either actual or ‘constructive’ custody of the
petitioner.” Id. (citing LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996)). To be found
in the constructive custody of the United States within the meaning of the habeas statute, the
burden is on the petitioner to establish that “the respondent was responsible for significant
restraints on the petitioner’s liberty.” Abu Ali, 350 F. Supp. 2d at 48.
A subset of Petitioners allege they are in constructive custody of the United States.
Though these Petitioners were “transferred from Guantanamo to the custody of other nations,”
they “claim that their continued physical detention by those nations is directed by or otherwise at
the behest of the United States.” Pet’rs’ Br. at 5. Petitioners are short on examples, except for
the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan
have been detained at a detention facility built by the United States. Id. Petitioners lean on Abu
Ali for the notion that the District Court continues to have habeas jurisdiction over individuals
detained by foreign powers at the behest of the United States. See id. at 6-7. In Abu Ali, a
United States citizen alleged he was being detained in a Saudi Arabian prison “at the behest and
ongoing supervision of the United States.” Abu Ali, 350 F. Supp. 2d at 30. The District Court
concluded that the petitioner was entitled to “expeditious jurisdictional discovery . . . to further
7
explore those contentions.” Id.
Respondents disclaim responsibility for the Petitioners’ continued detention. In support,
Respondents submit the declaration of Deputy Assistant Secretary of Defense Sandra L.
Hodgkinson, which explains that “[i]n all cases of transfer, the detainee is transferred entirely to
the custody and control of the other government, and once transferred, is no longer in the
custody and control of the United States.” Hodgkinson Decl. ¶ 5, July 9, 2008. If subsequent to
the transfer the individual is detained, the detention is “by the foreign government pursuant to its
own laws and not on behalf of the United States.” Id.; see also Decl. of Clint Williamson, United
States Ambassador-at-Large for War Crimes Issues, ¶ 6, June 8, 2007 (before transferring a
detainee the United States engages in discussions with the foreign government concerned “to
learn what measures the receiving government is likely to take to ensure that the detainee will
not pose a continuing threat to the United States or its allies”). With respect to the Afghani
detainees transferred to an Afghani detention center, according to the declaration of Lieutenant
Colonel David F. Koonce, Director of the Detainee Capabilities Directorate for the Combined
Security Transition Command-Afghanistan, the United States has no control over the disposition
of detainees transferred there, nor does it have control over the implementation and enforcement
of any specific security measures. Koonce Decl. ¶¶ 6-7, Oct. 31, 2008. Rather, such decisions
are within the sole discretion of the Afghanistan government under its domestic laws. Id.
Juxtaposed with the Government declarations, Petitioners’ blanket allegations are not
sufficient to prove that the United States is responsible for their continued detention. In Kiyemba
v. Obama, based on a Government declaration that mirrors the declarations here, the District of
Columbia Circuit concluded that detainees cannot “prevail on the ground that [a] foreign
8
sovereign is an agent of the United States merely because . . . the Government engages in a
dialogue to ascertain or establish what measures the receiving government intends to take
pursuant to its own domestic laws.” 561 F.3d 509, 515 n.7 (D.C. Cir. 2009) (“Kiyemba II”)
(citations and quotations omitted), cert. denied, 2010 WL 1005960 (U.S. Mar. 22, 2010); see
also Kiyemba II, 561 F.3d at 521 (Kavanaugh, J., concurring) (stating the declaration suffices “to
demonstrate that the proposed transfer of an alien to the custody of a foreign national is not the
same thing as the U.S. Government’s maintaining the detainee in U.S. custody”). In view of that
declaration, the Circuit Court had “no reason to think the transfer process may be a ruse – and a
fraud on the court – designed to maintain control over the detainees beyond the reach of the
writ.” Id. The Supreme Court has also provided that courts are “not suited to second-guess”
such Government representations. Munaf, 128 S. Ct. at 2226. Following the direction of the
appellate courts, this Court fully credits the Government declarations. Accordingly, the Court
accepts that foreign governments, not the United States Government, are responsible for any
continuing restraints on Petitioners’ liberty.
Abu Ali, on which Petitioners rest the bulk of their “in custody” argument, Pet’rs’ Br. at
6-7, is inapposite. The petitioner, Abu Ali, provided detailed, extensive evidence that the
“United States orchestrated [his] detention and was intimately involved from the very
beginning.” Abu Ali, 350 F. Supp. 2d at 30-38. Saudi Arabian officials even “acknowledged
publicly that the United States has been involved throughout his detention, and have told United
States officials that they would release Abu Ali at the request of the United States.” Id. at 38.
The United States did not rebut those allegations, instead seeking to dismiss the petition “on the
theory that a federal court lacks jurisdiction to issue a writ of habeas corpus where the prisoner is
9
currently being held by a foreign custodian, no matter what role the Untied States allegedly has
played in his detention.” Id. at 37. In contrast, there is no evidence that the United States exerts
this level of control over Petitioners. Respondents provide Government declarations establishing
that the United States relinquishes custody of detainees when they are transferred or released
from Guantanamo to a foreign country.4
Furthermore, Petitioners miscast the holding in Abu Ali. The District Court did not
conclude that Abu Ali was in United States custody. Id. at 50. Rather, it rejected the
Government’s contention that a federal court has no jurisdiction to consider the habeas petition
of an individual in the hands of a foreign state. Id. at 31. In denying the Government’s motion
to dismiss for lack of habeas jurisdiction, the District Court authorized additional discovery to
explore the petitioner’s unrebutted pleadings. Id. Such discovery was justified by the
Government’s reticence. Far from concluding that individuals detained abroad at the behest of
the United States are in constructive custody, the District Court cautioned that “[t]he instances
where the United States is correctly deemed to be operating through a foreign ally as an
intermediary for purposes of habeas jurisdiction will be exceptional, and a federal court’s inquiry
in such cases will be substantially circumscribed by the separation of the powers.” Id. at 41.
Here, Respondents do not make the same broad assertions that federal courts lack of jurisdiction,
choosing instead to directly rebut Petitioners’ allegations with Government declarations. Based
on those declarations, the Court sees no need for additional inquiry into the matter.
Therefore, the Court finds that petitioners are no longer “in custody” of the United States.
4
It bears noting that Abu Ali was a United States citizen whereas Petitioners are aliens.
As the District Court explained in Abu Ali, in the context of habeas challenges to detention by a
foreign government, “[t]he differences between the rights of citizens and the rights of aliens are
considerable.” Abu Ali, 350 F. Supp. 2d at 55.
10
Cf. Al Hajji v. Obama, 2009 WL 4251108, at *1-2 (D.D.C. Nov. 23, 2009) (holding that, based
on the Hodgkinson Declaration, former detainees are not in the constructive custody of the
United States). Petitioners’ general allegations of constructive custody do not satisfy their
burden, especially in light of credible Government attestations to the contrary. Since none of the
Petitioners remain “in custody” under the habeas statute, they all must rely on the collateral
consequences of their prior detention in order to preserve their habeas claims.
B. Collateral Consequences Doctrine
Mootness is a glaring issue for habeas petitioners who have been released from United
States custody. At all stages of federal judicial proceedings, a habeas petitioner must present a
live case or controversy under Article III, §2, of the Constitution. Spencer, 523 U.S. at 7. Under
common law, a petitioner no longer in custody can meet this case-or-controversy requirement by
demonstrating he suffers from collateral consequences of his prior detention that are “concrete”
and “‘likely to be redressed by a favorable judicial decision.’” Id. at 7 (quoting Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477 (1990)). The petitioner bears the burden of establishing such
collateral consequences. See, e.g., Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir. 2004)
(stating that “for a court to exercise habeas jurisdiction over a petitioner no longer in custody, the
petitioner must demonstrate . . . that he continues to present a case or controversy under Article
III, § 2”); Qassim v. Bush, 466 F.3d 1073, 1078 (D.C. Cir. 2006) (same); Idema v. Rice, 478 F.
Supp. 2d 47, 51 (D.D.C. 2007) (“The petitioner bears the burden of establishing collateral
consequences.”).5
5
Petitioners argue that the burden of establishing mootness should fall on the
Government, analogizing to habeas challenges to criminal convictions where the existence of
collateral consequences are presumed. See Pet’rs’ Br. at 4. Although in the context of criminal
convictions collateral consequences are in fact presumed, the Supreme Court has not extended
that presumption to other habeas contexts. See Spencer, 523 U.S. at 10-14. To the contrary, in
11
According to Petitioners, this common law exception to the custody requirement – the
collateral consequences doctrine – applies to Guantanamo detainees.6 Petitioners allege they
suffer from a variety of harms that are both concrete and redressable. Rather than identify which
Petitioners suffer from which harm, they provide a comprehensive list of consequences affecting
Spencer the Supreme Court expressed unease with such presumptions. Id. at 10-11. Moreover,
the Circuit Court has held that “[h]abeas review for Guantanamo detainees need not match the
procedures developed by Congress and the courts specifically for habeas challenges to criminal
convictions.” Al-Bihani, 590 F.3d at 877. Accordingly, the Court declines to extend a
presumption to Petitioners’ allegations of collateral consequences.
6
Petitioners contend that since federal courts apply the collateral consequences doctrine
to petitioners in other habeas contexts, it should apply to them. See, e.g., Pet’rs’ Br. at 17 (“[I]t
is well-settled law that so long as there is a risk that petitioner will suffer some collateral
consequences as a result of some aspect of his unlawful custody, his case will not become moot
simply because he is no longer in ‘custody.’”). Respondents concede as much. See Resp’ts’
Supp. Br. at 2. For the purposes of this opinion, the Court need not question that assumption.
Nevertheless, the Court notes that Boumediene restricted Guantanamo detainees’ habeas
privilege to the “fundamental procedural protections of habeas corpus.” Boumediene, 128 S. Ct.
at 2277; see also Al-Bihani, 590 F.3d at 875-76. Specifically, the Supreme Court enumerated
two fundamental habeas procedures: (1) a habeas petitioner is entitled to “a meaningful
opportunity to demonstrate he is being held” unlawfully and (2) “the habeas court must have the
power to order the conditional release of an individual unlawfully detained.” Boumediene, 128
S. Ct. at 2266-67. Both of these “fundamental procedural protections” are seemingly inapposite
to the collateral consequences doctrine. The doctrine does not provide a petitioner “a
meaningful opportunity to demonstrate he is being held” unlawfully because the doctrine only
applies to petitioners who are no longer being held. Nor does the doctrine allow a habeas court
to “order the conditional release of” a petitioner since the doctrine only applies to petitioners
who have already been released from United States custody. There thus is no indication that the
doctrine would be construed as “fundamental” under the only habeas procedures the Supreme
Court conspicuously afforded to Guantanamo detainees.
Directly undermining Petitioners’ position, the District of Columbia Circuit explicitly
rejected the notion that Guantanamo detainees are entitled to the panoply of habeas rights
afforded to petitioners in other contexts. In Al-Bihani, the Circuit Court stated that “[h]abeas
review for Guantanamo detainees need not match the procedures developed by Congress and the
courts specifically for habeas challenges to criminal convictions. . . . [A]ny argument equating
[the] fundamental character [of habeas proceedings] with all the accroutements of habeas for
domestic criminal defendants is highly suspect.” 590 F.3d at 876. Here, Petitioners cite to
procedures developed by the courts for habeas challenges to criminal convictions – the collateral
consequences doctrine. It is thus unclear whether habeas review for Guantanamo detainees
needs to include the doctrine.
12
the group as a whole. Collectively, because of their prior detention at Guantanamo, Petitioners
are allegedly detained abroad, subject to travel restrictions, stigmatized, prohibited from
traveling to the United States, and barred from seeking civil damages. The Court finds, however,
that each of these consequences is not redressable by a federal court. Moreover, some of them
are speculative.
i. Conditions imposed by foreign governments
Foremost among Petitioners’ alleged collateral consequences are restrictions imposed on
them as a result of agreements between foreign governments and the United States Government.
A number of Petitioners aver that because of those agreements they are being physically detained
or subject to restrictions by their host foreign governments. See Pet’rs’ Br. at 7-13. Their
allegations are primarily derived from declarations that describe commitments the United States
Government requires before transferring a detainee. According to Clint Williamson, United
States Ambassador-at-Large for War Crimes Issues, detainees were transferred to their foreign
governments of nationality “when those governments were willing to accept responsibility for
ensuring, consistent with their laws, that the detainees will not continue to pose a threat to the
United States and its allies.” Williamson Decl. ¶ 3. In a separate declaration, Joseph Benkert,
Principal Deputy Assistant Secretary of Defense for Global Security Affairs, explains that the
United States Government engages in diplomatic dialogue with receiving governments “to
ascertain or establish what measures the receiving government intends to take, pursuant to its
own domestic laws and independent determinations.” Benkert Decl. ¶ 5, June 8, 2007.
Petitioners posit that some of these measures are predicated on a former detainee’s prior status as
13
an enemy combatant.7 Pet’rs’ Br. at 13. Whereas some Petitioners are prohibited from traveling
outside of their host countries, a group of former detainees who were determined to no longer be
enemy combatants by Combatant Status Review Tribunals8 and subsequently transferred to
Albania are allegedly allowed to travel internationally without restriction. Id.
According to Petitioners, these conditions are concrete and redressable consequences of
their prior detention. The injuries are not speculative because some Petitioners remain in
detention, while others endure overt restrictions on their activity. Pet’rs’ Br. at 13-15. A remedy
is also well within a federal court’s authority, Petitioners’ contend – the District Court can
simply invalidate the agreements between the United States and the foreign governments.
Pet’rs’ Reply at 12, 18; Pet’rs’ Supp. Reply at 6-7. To the extent the restrictions are predicated
on the United States Government’s prior determinations that Petitioners are enemy combatants,
the District Court can annul those determinations. Pet’rs’ Br. at 13-15.
Petitioners, however, inflate the District Court’s authority. Collateral consequences of
7
The Government no longer uses the term “enemy combatant,” instead asserting,
The President has the authority to detain persons that the President determines
planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, and persons who harbored those responsible for those attacks.
The President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly supported hostilities, in
aid of such enemy armed forces.
Resp’ts’ Mem. Regarding the Gov’t’s Detention Authority Relative to Detainees Held at
Guantanamo, Zuhair v. Obama, No. 08-0864 at 2 (Mar. 13, 2009) [Dkt. No. 160] (“Resp’ts’
Mem. on Detention Authority”).
8
The Defense Department established Combatant Status Review Tribunals “to determine
whether individuals detained at Guantanamo were ‘enemy combatants.’” Boumediene, 128 S.
Ct. at 2241.
14
prior detention are not redressable if the injuries are “totally dependent upon the actions of a non-
party sovereign authority beyond the control of this Court.” Al Joudi v. Bush, 2008 WL 821884,
at *1 (D.D.C. Mar. 26, 2008); see also Al Hajji, 2009 WL 4251108, at *2 (“collateral
consequences that are ‘based on the discretionary decisions of’ someone other than respondents,
alone, effectively renders [a] case moot” (quoting Spencer, 523 U.S. at 13)). Taking for granted
that Petitioners are subject to the conditions they allege, the very declarations that Petitioners
rely upon evidence the District Court’s lack of authority. The Benkert Declaration indicates that
measures taken by a receiving government are made “pursuant to its own domestic law and
independent determinations.” Benkert Decl. ¶ 5. In other words, a “detainee is transferred
entirely to the custody and control of the other government, and once transferred, is no longer in
the custody and control of the United States; the individual is detained, if at all, by the foreign
government pursuant to its own laws and not on behalf of the United States.” Id.; see
Hodgkinson Decl. ¶ 5 (stating that detention by a foreign government is made “by the foreign
government pursuant to its own laws and not on behalf of the United States”). The assurances
that foreign governments provide to the United States Government that Ambassador Williamson
describes are made “consistent with [the foreign sovereign’s] laws.” Williamson Decl. ¶ 3.
Petitioners attack the above portions of the Government’s declarations while
simultaneously embracing language from those documents that ostensibly support their claim.
The Court, however, declines to cherry-pick. The District of Columbia Circuit has attested to the
validity of Government declarations that transferred detainees are detained by “foreign
government[s] pursuant to [their] own laws and not on behalf of the United States.” Kiyemba II,
561 F.3d at 515 n.7 (quoting Decl. of Matthew C. Waxman, Deputy Assistant Secretary of
Defense for Detainee Affairs, ¶ 5, June 2, 2005). Following the Circuit Court’s lead, this Court
15
has “no reason to think the transfer process may be a ruse – and a fraud on the court – designed
to maintain control over the detainees beyond the reach of the writ.” Kiyemba II, 561 F.3d at 515
n.7. The Court is “not suited to second-guess” those Government representations, as it would
“undermine the Government’s ability to speak with one voice in this area.” See Munaf, 128 S.
Ct. at 2226. Thus, the Court accepts that conditions imposed on Petitioners by foreign
governments are made “pursuant to [their] own domestic law and independent determinations,”
Benkert Decl. ¶ 5. Since the conditions are “totally dependent upon the actions of a non-party
sovereign authority,” Al Joudi, 2008 WL 821884, at *1, they do not preserve Petitioners’ habeas
claims.
Put differently, even if the Court granted Petitioners the relief they seek, such a ruling
would not preclude foreign governments “from taking all of the actions that Petitioners fear.” Id.
The Court “has no authority over the foreign governments currently holding” Petitioners. See Al
Hajji, 2009 WL 4251108, at *2. “It is a longstanding principle of our jurisprudence that ‘[t]he
jurisdiction of [a] nation, within its own territory, is necessarily exclusive and absolute.’”
Kiyemba II, 561 F.3d at 515 (quoting Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136
(1812)). For this reason, the District Court is barred from issuing “a writ of habeas corpus to
shield a detainee from [potential] prosecution or detention at the hands of another sovereign on
its soil and under its authority.” Kiyemba II, 561 F.3d at 516; see also Munaf, 128 S. Ct. at 2224
(explaining that “the same principles of comity and respect for foreign sovereigns that preclude
judicial scrutiny of foreign convictions necessarily render invalid attempts to shield citizens from
foreign prosecutions” (citation omitted)). “Judicial inquiry into a recipient country’s basis or
procedures for prosecuting or detaining a transferee from Guantanamo would implicate not only
norms of international comity but also . . . separation of powers principles.” Kiyemba II, 561
16
F.3d at 515. If the Court cannot grant relief based on a detainee’s expectation that a recipient
country will detain him, then it necessarily follows that the Court can grant no relief to
petitioners who are no longer in United States custody and whose disposition is entirely within
the discretion of a foreign sovereign. Quite simply, Petitioners have not demonstrated that
granting their habeas claims would terminate any conditions imposed on them by their host
foreign governments. Because the federal courts are powerless to redress those conditions, they
do not save Petitioners’ habeas claims from being moot.
ii. Stigma
Petitioners complain of “stigmatic consequences” of having been labeled an enemy
combatant by the United States Government. See Pet’rs’ Br. at 20-23. They cite to
characterizations by Government officials that Guantanamo detainees are the “worst of the
worst.” Id. at 20 (quoting Katharine Seelye, Some Guantanamo Prisoners Will Be Freed,
Rumsfeld Says, N.Y. TIMES, Oct. 23, 2002, at A14). Though not describing the stigma in detail,
Petitioners aver that their reputations have been damaged. See Pet’rs’ Supp. Br. Ex. A at 13
(Pet’r’s Opp. to Resp’ts’ Mot. to Dismiss as Moot Habeas Petition, Zuhair v. Obama, No. 08-
0864 (Aug. 3, 2009)) (Nov. 10, 2009) [Dkt. No. 112]. The District Court can remedy the harm,
Petitioners contend, by voiding the Government’s prior determination that Petitioners were enemy
combatants. Id. at 17.
Clarifying what collateral consequences present a live case or controversy, the Supreme
Court has limited post-detention habeas relief to “‘civil disabilities’ imposed on former detainees
by operation of law.” Idema, 478 F. Supp. 2d at 52 (quoting Lane v. Willians, 455 U.S. 624, 631-
33 (1982)). Non-statutory consequences of a conviction such as loss of “employment prospects,
or the sentence imposed in a future criminal proceeding” are not redressable by a federal court,
17
and are often speculative, since they depend on the “discretionary decisions” of others. See Lane,
455 U.S. at 632-33. For this reason, the Supreme Court has not regarded damage to reputation as
sufficient to avoid mootness, even when the damage stems from a criminal conviction. See
Spencer, 523 U.S. at 16 n.8.
The stigmatic consequences allegedly affecting Petitioners are not imposed by operation
of law. Petitioners present no evidence that the damage to their reputations is statutorily
prescribed. Nor do Petitioners demonstrate how their general allegations of stigma present a
concrete injury, as opposed to mere speculation. Under similar circumstances, the District Court
dismissed as moot a habeas petition relying on reputational harm to maintain jurisdiction. Idema,
478 F. Supp. 2d at 50-52. In Idema, the petitioner, a United States citizen, accused the United
States of complicity in his torture, conviction for various crimes, and imprisonment in
Afghanistan. Id. Though released from prison and not in United States custody, the petitioner
filed a habeas claim alleging that his imprisonment in Afghanistan harmed his “professional
reputation” and denied him core parental rights over his daughter. Id. at 51-52. Noting that
injury to ones professional reputation was “based on the discretionary decisions of employers”
and not “legally prescribed,” the District Court held that the alleged collateral consequences did
not present a “legally cognizable reason for this Court to maintain jurisdiction” over the
petitioner’s habeas claim. Id. at 52. The stigma alleged by Petitioners is no different. Any harm
or injuries are “based on the discretionary decisions” of non-parties and not “legally prescribed.”
In fact, extending the writ is even less compelling here since Petitioners are not United States
citizens.
Attempting to distinguish Idema, Petitioners suggest that the reputational harm alleged in
that case was only deemed not redressable because the remedy would have required a federal
18
court to “declare void the judgment of [a] foreign tribunal.” Pet’rs’ Supp. Br. Ex. A at 17. In
contrast, Petitioners seek to void a determination by the United States Government, which is well
within the District Court’s authority. See id. The foreign conviction, however, was only one
factor driving the decision in Idema. The dispositive consideration was that the harm was based
on discretionary decisions, as opposed to “legally prescribed consequences.” Idema, 478 F. Supp.
2d at 52. In addition to discussing the Afghanistan conviction, the District Court observed that it
had “no power to . . . in any way affect the discretionary decisions of prospective employers or
family court judges.” Likewise, the District Court is unable to affect the discretionary decisions
of foreign governments or individuals whose actions or beliefs may be harming Petitioners.
Petitioners also ignore the fact that the alleged stigma may derive from the underlying conduct for
which they were previously detained at Guantanamo, as opposed their prior designation as enemy
combatants. Any disabilities that flow from that conduct will not be removed if the District Court
grants their petitions. Cf. Lane, 455 U.S. at 632-33 (“Any disabilities that flow from whatever
[petitioners] did to evoke revocation of parole are not removed – or even affected – by a District
Court order that simply recites that their parole terms are ‘void.’”).
Therefore, though the “Court understands [Petitioners’] desire to restore [their] good
name, a habeas petition is not the proper method to do so.” See Idema, 478 F. Supp. 2d at 52.
Just as the Supreme Court has declined to regard damage to reputation as sufficient to avoid
mootness, so does this Court.
iii. Travel to the United States
Petitioners cite two ostensible statutory consequences of their prior detention at
Guantanamo that relate to travel to the United States. As described above, the Supreme Court has
limited post-detention habeas relief to civil disabilities imposed by statute. See Idema, 478 F.
19
Supp. 2d at 52; Lane, 455 U.S. at 631-33. According to Petitioners, the Department of Homeland
Security Appropriations Act, 2010, which the President signed on October 28, 2009, places them
on the No Fly List. See Pet’rs’ Supp. Br. at 3. That law mandates that
The Assistant Secretary, in coordination with the Terrorist Screening Center, shall
include on the No Fly List any individual who was a detainee held at the Naval
Station, Guantanamo Bay, Cuba, unless the President certifies in writing to Congress
that the detainee poses no threat to the United States, its citizens or its allies. For the
purposes of this clause, the term ‘detainee’ means an individual in the custody or
under the physical control of the United States as a result of armed conflict.
Pub. L. No. 111-83, § 553, 123 Stat. 2179 (Oct. 28, 2009) (codified at 49 U.S.C. §
44903(j)(2)(C)(v)) (emphasis added). Petitioners claim that the statute presents a legislated
consequence of their prior detention – they are now on the No Fly List. They also contend that
under a different statute they are barred from admission into the United States based on their prior
designation as enemy combatants. See 8 U.S.C. § 1182(a)(3)(B) (2009) (“Any alien . . . who has
engaged in a terrorist activity . . . [or] is a member of a terrorist organization . . . is
inadmissible.”).
Although the alleged consequences are statutorily prescribed, Petitioners overlook the fact
that statutory-based consequences must still be redressable by a federal court to satisfy the
collateral consequences doctrine. In the very cases cited by Petitioners, the statutorily-prescribed
disabilities result from a determination or conviction that a federal court can remedy. See Carafas
v. LaVallee, 391 U.S. 234, 237-38 (1968) (finding that habeas petition was not moot after
sentence expired because of statutory consequences from being a convict under New York law);
Zalawadia, 371 F.3d at 292 (instructing district court to vacate deportation order for habeas
petitioner whose deportation barred him from seeking reentry into the United States for five
years). Here, the District Court cannot redress either of the harms. Perhaps this explains
Petitioners’ reticence on the remedies available to the District Court. While the Court
20
understands the desire of Petitioners to be removed from the No Fly List, the legality of their
detention at Guantanamo is not relevant to the injury. Regardless of whether their petitions are
granted, Petitioners will have been “held at the Naval Station, Guantanamo Bay, Cuba,” and thus
will be barred from boarding a flight in some capacity.
Granting Petitioners’ habeas claims also will not remedy any statutory bar to their
admission into the United States. Under 8 U.S.C. § 1182(a)(3)(B), aliens are barred from entering
the United States when they have engaged in “[t]errorist activities,” which refers to at least eight
categories of conduct, including currently being a member of a terrorist organization. Absent
from these categories is any per se bar against aliens who were previously a member of a terrorist
organization. The District Court, however, is only authorized to determine whether Petitioners
“were part of, or substantially supported, Taliban or al-Qaida force or associated forces that are
engaged in hostilities against the United states or its coalition partners.” Resp’ts’ Mem. on
Detention Authority at 2 (emphasis added); Al-Bihani, 590 F.3d at 871-72 (holding that the
Government may lawfully detain Guantanamo detainees under the framework provided to the
District Court on March 13, 2009). Granting Petitioners’ habeas petitions thus would not prevent
the Government from barring their admission. For example, even if a Petitioner was not a
member of Taliban or al-Qaida, he may currently endorse or espouse terrorist activity (§
1182(a)(3)(B)(i)(VII)), and thus would be barred. The converse is also true. It is conceivable a
Petitioner was a member of the Taliban or al-Qaida, but does not endorse or espouse terrorist
activity, is not currently “a member of a terrorist organization” (§ 1182(a)(3)(B)(i)(V)), and
otherwise does not engage in any “[t]errorist activities.” See 8 U.S.C. § 1182(a)(3)(B). That
Petitioner would not be barred from admission under the statute.
Under either statute, Petitioners’ prior support for or membership in the Taliban or al-
21
Qaida does not result in a statutorily-prescribed consequence. Since the Court cannot redress the
alleged consequences, they do not preserve Petitioners’ habeas claims.
iv. Damages
The final consequence raised by Petitioners is that their prior detention at Guantanamo
will preclude them from bringing a civil action for damages. See Pet’rs’ Br. at 21 n.22. The
habeas corpus statute, as amended by the MCA, states that
[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action
against the United States or its agents relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who is or was detained by
the United States and has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e)(2) (2008). Petitioners claim that the Government would “almost certainly”
use the fact that a Petitioner was determined to be an enemy combatant to bar any civil damages
action. See Pet’rs’ Supp. Br. Ex. A at 8. They posit that if the District Court found that they were
not properly detained as enemy combatants, this jurisdictional barrier would be eliminated.
Therefore, Petitioners aver, the injury is statutorily-prescribed, concrete, and susceptible to
judicial correction, thus preserving their habeas claims.
The absence of an available damages action, however, is not a sufficient collateral
consequence. In Spencer, the Supreme Court concluded that a petitioner’s inability to sue for
damages does not prevent the dismissal of an otherwise moot habeas claim. 523 U.S. at 17. The
petitioner contended that his habeas petition should survive because, absent a favorable decision
on the merits, he would be foreclosed from pursuing a damages action under 42 U.S.C. § 1983.
Id. The Supreme Court disagreed, calling the argument “a great non sequitur, unless one believes
(as we do not) that a § 1983 action for damages must always and everywhere be available.” Id.
In any event, it was uncertain, the Supreme Court stated, that a successful habeas claim was a
22
prerequisite to pursuing a § 1983 claim. Id.
Accordingly, Spencer forecloses Petitioners’ argument. Even if Petitioners are prevented
under § 2241(e)(2) from seeking civil damages, under Spencer a federal court may dismiss their
habeas claims as moot. Indeed, their claim is speculative. To the extent the District of Columbia
Circuit has opined on damages claims of former Guantanamo detainees, it has indicated they lack
merit. See Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (dismissing damages claims brought by
former Guantanamo detainees under the Alien Tort Claims Act, the Religious Freedom
Restoration Act, the Geneva Convention, and Bivens). Similar to Spencer, it is also uncertain the
degree to which a successful habeas petition would affect a Petitioner’s pursuit of a damages
claim. Under § 2241(e)(2), a federal court does not have jurisdiction over a former Guantanamo
detainee’s civil action if the “United States” has determined the detainee was “properly detained
as an enemy combatant.” In the statute, the term “United States” unmistakably refers to the
Executive Branch, not the judiciary. The sentence at issue distinguishes “court, justice, or judge”
from the “United States,” as the former has no jurisdiction over non-habeas actions brought
against the latter. Petitioners fail to cite authority indicating that under the statute a “court,
justice, or judge” could negate a prior determination by the “United States” that a Petitioner was
an enemy combatant. Since the determination by the “United States” is not subject to court
review, it follows that a successful habeas petition would not provide a federal court with
jurisdiction to hear a Petitioner’s “other action,” in this case a damages action. Therefore, the
Court finds that Petitioners’ alleged inability to sue for damages is both speculative and not
redressable.
The Court is not unsympathetic to potential collateral consequences of Petitioners’ prior
detention at Guantanamo. Detention for any length of time can be injurious. And certainly
23
associations with Guantanamo tend to be negative. But the collateral consequences doctrine does
not protect a habeas petitioner from any consequence of his prior detention. Rather, the harm
must be concrete and redressable by a court. On this score, Petitioners fail to carry their burden.
The alleged injuries are either speculative or beyond the Court’s authority to redress, and
therefore do not save the petitions from being moot.
CONCLUSION
Today, the Court answers just one of the questions left unresolved by the Supreme Court’s
decision in Boumediene allowing Guantanamo detainees to petition the District Court for habeas
relief. Based on comprehensive briefing regarding the habeas petitions of 105 former detainees, it
appears that once a Guantanamo detainee is transferred or released to a foreign country, his
petition becomes moot. The Court finds that Petitioners no longer present a live case or
controversy since a federal court cannot remedy the alleged collateral consequences of their prior
detention at Guantanamo. Accordingly, the Court will dismiss as moot the 105 habeas petitions
of former detainees in the above-captioned cases.9
An order accompanies this memorandum opinion.
April 1, 2010 /s/ Thomas F. Hogan
Thomas F. Hogan
United States District Judge
9
Petitioners make a passing reference to the fact that some of their habeas petitions
include non-habeas claims, such as complaints for injunctive and declaratory relief. See Pet’rs’
Br. at 24. In dismissing the petitions as moot, the Court refrains from deciding the merits of any
non-habeas claims. The parties did not brief those claims. Moreover, Boumediene only granted
the District Court jurisdiction to adjudicate the habeas claims of Guantanamo detainees. See
Boumediene, 128 S. Ct. at 2275 (“Our decision today holds only that the petitioners before us are
entitled to seek the writ . . . .”). Therefore, any non-habeas claims included in Petitioners’
habeas petitions will be dismissed without prejudice.
24
| {
"pile_set_name": "FreeLaw"
} |
Case: 18-12672 Date Filed: 03/13/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12672
Non-Argument Calendar
________________________
D.C. Docket No. 5:17-cv-00220-RH-GRJ
WILLIE BRICE WARE,
Plaintiff-Appellant,
versus
CITY OF PANAMA CITY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 13, 2019)
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 18-12672 Date Filed: 03/13/2019 Page: 2 of 6
Willie Ware appeals the district court’s grant of summary judgment in favor
of his former employer, the City of Panama City, Florida, in his employment
discrimination suit.1 Ware, who is African-American, contends that racial animus
led Panama City to terminate his employment as a recreation worker after he asked
another employee to “clock in” for him when he was running late for work, in
violation of the City’s “Safe Harbor” policy on timekeeping. On appeal, Ware
argues that the district court incorrectly concluded that he failed to establish a
prima facie case of discrimination, claiming that Panama City was significantly
more lax in enforcing the policy with similarly-situated white employees. After
careful review of the record, we conclude that the district court properly granted
the City’s motion for summary judgment, and therefore affirm. 2
We start first with the question whether Ware has established a prima facie
case of discrimination under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Ware may establish a prima facie case of
discrimination by demonstrating (1) that he is a member of a protected class, (2)
1
In addition to his Title VII disparate-treatment claim, Ware brought suit under 42 U.S.C.
§ 1981(a) and the Florida Civil Rights Act, Flat. Stat. § 760.10(1)(a). Because Title VII’s
framework guides our analysis under both § 1981(a) and FCRA, we will focus exclusively on
Title VII throughout this opinion. See Holland v. Gee, 677 F.3d 1047, 1055 n.1 (11th Cir. 2012)
(citation omitted); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
2
We review de novo the district court’s grant of summary judgment. Holloman v. Mail-Well
Corp., 443 F.3d 832, 836 (11th Cir. 2006). “Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue
of material fact and compels judgment as a matter of law in favor of the moving party.” Id. at
836–37.
2
Case: 18-12672 Date Filed: 03/13/2019 Page: 3 of 6
that he was qualified for his position, (3) that he was fired or otherwise subject to
an adverse employment action, and (4) that his employer treated similarly-situated
employees outside of his protected class differently when they engaged in
comparable conduct. Holifield v. Reno, 115 F.3d 1555, 1561–62 (11th Cir. 1997),
abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006); Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185
(11th Cir. 1984). A plaintiff can establish a prima facie case even if—as is true
here—his replacement is a member of the protected class. Nix, 738 F.2d at 1185.
The parties first dispute whether Ware has identified any similarly situated
white employees who were treated more favorably by Panama City. “The plaintiff
and the employee [he] identifies as a comparator must be similarly situated in all
relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.
2004) (citation and internal quotation marks omitted). For cases involving alleged
disparities in discipline, we evaluate whether the plaintiff and his proffered
comparators engaged in comparable misconduct and yet were punished differently.
See Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).
We agree with the district court that Ware has not identified any suitable
comparators here. Ware contends that all Panama City employees that use the
Kronos time keeping system are similarly situated, “as each [is] required to comply
with the City’s time keeping rules.” Painting with this broad brush, Ware purports
3
Case: 18-12672 Date Filed: 03/13/2019 Page: 4 of 6
to identify several white Panama City police department employees who engaged
in questionable time keeping practices without losing their jobs. But even if these
employees were accused of comparable misconduct, they are not proper
comparators. Kim Pilcher, Panama City’s HR director, justified Ware’s
termination from his recreation-worker job based on her “one strike you’re out”
philosophy concerning acts of “theft” and “dishonesty” against the City. She “did
not have any authority” to discipline police department employees, however, as
any such authority rested solely with the Chief of Police. The fact that Ware and
the police department employees to whom he points were subject to the
jurisdiction of different supervisors who applied the Safe Harbor policy differently
indicates that the employees are not suitable Title VII comparators. See Jones v.
Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (agreeing with those courts that
have held that “disciplinary measures undertaken by different supervisors may not
be comparable for purposes of Title VII analysis”). Ware has not identified any
other comparators, and thus the district court correctly held that he has not
established a prima facie case of discrimination under McDonnell Douglas.
Even if we were to conclude that Ware has provided evidence that white
comparators were treated more favorably, summary judgment was nevertheless
proper because Ware has failed to show that Panama City’s justifications were
pretextual. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 & n.5 (11th
4
Case: 18-12672 Date Filed: 03/13/2019 Page: 5 of 6
Cir. 2004) (concluding, as an independent ground for affirming the grant of
summary judgment, that the plaintiff had not established pretext, regardless of the
district court’s prima facie analysis). To establish pretext, Ware must show
“not just that [Panama City’s] proffered reasons for firing [him] were ill-founded
but that unlawful discrimination was the true reason.” Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1267 (11th Cir. 2010).
Ware has not established that “unlawful discrimination was the true reason”
for Panama City’s decision. Id. In its motion for summary judgment, the City
stated that it was necessary to terminate Ware because he “attempted to falsify time
records and commit theft from the City by receiving compensation for time spent
at work when [he] was not actually present at work,” thereby “knowing[ly] and
intentional[ly] attempt[ing] to defraud the City.” Ware has not sufficiently cast
doubt on the legitimacy of this explanation. It is particularly difficult to do so here,
as the Safe Harbor Policy—by its plain terms—deems it a “serious violation” for
any “employee or supervisor to instruct another employee to incorrectly or falsely
report hours worked.”
It may be that Pilcher’s zero-tolerance approach is, as Ware characterizes it,
“harsh or unreasonable.” But in the absence of discrimination, Title VII does not
provide a remedy for “harsh” employment decisions. See Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (opining that “[f]ederal courts do not sit as a
5
Case: 18-12672 Date Filed: 03/13/2019 Page: 6 of 6
super-personnel department that reexamines an [employer’s] . . . decisions[, n]o
matter how medieval [an employer’s practices]”) (citation and internal quotation
marks omitted). Ware has not met his burden to establish pretext here.
Finally, Ware has not presented the sort of “convincing mosaic of
circumstantial evidence” of Panama City’s discriminatory intent that would
otherwise allow his claims to withstand summary judgment. Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation omitted).
Ware cites the fact that Pilcher’s decision “went against the recommendations of
the . . . chain of command, who suggested suspension without pay or a disciplinary
. . . write up.” But nothing in the record suggests that this ran against her usual
practice. In fact, as noted by the district court, “Pilcher has never failed to
terminate an employee over whom she had termination authority if she learned the
employee stole or attempted to steal time.” The record shows, for instance, that
Pilcher fired or accepted the resignations of three white employees pursuant to her
zero-tolerance policy. The evidence falls well short of a “convincing mosaic”
here.
AFFIRMED.
6
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2003
Charles R. Fulbruge III
Clerk
No. 02-41715
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY KEITH COOPER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CR-229-2
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Gary Keith Cooper appeals his conviction following a jury
trial for being a felon in possession of a firearm. He argues that
the evidence was not sufficient for a reasonable trier of fact to
find beyond a reasonable doubt that he knowingly possessed a
firearm.
Cooper stipulated to being a convicted felon, and he does not
challenge the Government’s evidence that the firearms in
question had
a nexus with interstate commerce. Thus, the sole issue on appeal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-41715
-2-
is whether Cooper was knowingly in possession of any of the
firearms seized from the apartment where he was arrested.
Cooper’s co-defendant testified at trial that he saw Cooper
purchase the 9mm handgun found in the apartment. He also testified
that, on more than one occasion, he saw Cooper transport the gun
between the apartment and the car that they both used. The jury
apparently did not find credible Cooper’s testimony that he did not
own, or know anything about, the handgun or the other firearms
found in the apartment. “[T]his court will not substitute its own
determination of credibility for that of the jury.” See United
States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).
Viewing the evidence in the light most favorable to the
verdict, a reasonable trier of fact could have found that the
evidence established beyond a reasonable doubt that Cooper had been
convicted of a felony and that he was in possession of a firearm
that had a nexus with interstate commerce. Thus, the evidence was
sufficient to sustain his conviction. See United States v. Jones,
133 F.3d 358, 362 (5th Cir. 1998).
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
194 F.2d 988
In re RADER et al.
No. 163, Docket 22232.
United States Court of Appeals, Second Circuit.
Submitted Feb. 11, 1952.Decided March 10, 1952.
Philip Klein, New York City, for The National Cash Register Co., claimant appellant.
Levin & Weintraub, New York City (Benjamin Weintraub, New York City, of counsel; Melvin I. Pitt, New York City, on the brief), for John A. Vaccaro, trustee appellee.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
PER CURIAM.
1
The referee found that on February 28, 1950, the appellant sold a cash register to the bankrupt on a conditional sales contract, a copy of which it did not file for record. The bankrupt did nothing to conceal his financial condition from the appellant nor did he make any statement, oral or written, to induce the appellant, who was aware of the condition of his business, to extend credit to him. He acted in good faith and did nothing to defraud or mislead the appellant who relied solely upon its conditional sales contract.
2
On March 21, 1950, a voluntary petition in bankruptcy was filed and thereafter the purchaser was adjudicated a bankrupt and the appellee is his duly qualified trustee.
3
This bankrupt was in a shaky financial condition when he made the purchase, but he had recently put $6,000 of his own money into his business and the evidence as a whole warranted the findings to the effect that he had reason to, and did, believe he could meet the payments on the conditional bill of sale as they fell due.
4
That distinguishes such cases as California Conserving Co. v. D'Avanzo, 2 Cir., 62 F.2d 528 and leaves the seller with no legal basis for rescission. And, of course, the appellant's failure to file the conditional sales contract or to prove actual notice to all creditors leaves the trustee in bankruptcy free to avoid it. Matter of Master Knitting Corp., 2 Cir., 7 F.2d 11.
5
Order affirmed.
| {
"pile_set_name": "FreeLaw"
} |
^1,5(^9-^3
El
j?rl¥oJ 111
/& nlQ/S courta
i-<-m-nr»;s«M»j Anne
APPEAIbS-
Hi Ui-V'«-i^..-^-^i.M»Jr&
-F-EB-24«
7/?6rS/2&>&& AbsiAcosw, Clark
£W ri/i^A^L^ -T './Pcd&Uteef rf /dt-'/ku /Jo/^'o^/JqaL
~/A/_ /fa// Aa-/ /)£fs>/^^; JZZTi^ Jifo-/- /'U&. //J
/tfalitl^^LA^ 6*.
(^jea^^l^^ki^ ^S^/^L^^j2nUJLAO /o AA^-^MllcAp±—
~^*dPfly};xS y/p fycfc Up ~//l± /77a?// <D/J c4 //?//$
•/&.-/• frJ&& -/&/o/ /)\/ 7/2- S?&?//J&o/rt St/ietX^ -7^--/
/?7l ./)/?&s//? rt/y/f JroU (P/easi- $*Ju/u( -/At- /rMr>s
^S^£__^<QCL^
^STTfcO^
| {
"pile_set_name": "FreeLaw"
} |
AP-76,970
COURT OF CRIMINAL APPEALS
FILED IN AUSTIN, TEXAS
COURT OF CRIMINAL APPEALS
Transmitted 4/28/2015 5:13:39 PM
April 29, 2015 Accepted 4/29/2015 8:50:37 AM
ABEL ACOSTA
No. AP-76,970 CLERK
ABELACOSTA, CLERK
In the
Court of Criminal Appeals of Texas
At Austin
No. 9407130
In the 248th District Court
Of Harris County, Texas
CHARLES D. RABY
Appellant
V.
THE STATE OF TEXAS
Appellee
STATE'S MOTION TO PUBLISH
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS;
COMES NOW THE STATE OF TEXAS, by and through the undersigned
Assistant District Attorney, in accordance with Rules 10.1(a) and 47.2(b) of the
Texas Rules of Appellate Procedure, and files this motion to publish, and, in
support thereof, presents the following:
1. In the 248th District Court of Harris County, Texas, cause number
9407130, the appellant was convicted of capital murder in The State of Texas v.
Charles D. Raby.
Page 1 of 4
2. Based on the jury's answers to the special issues, the trial court
sentenced the appellant to death.
3. On March 4, 1998, the Court of Criminal Appeals affirmed the
appellant's capital murder conviction. Raby v. State, 970 S.W.2d 1 (Tex. Crim.
App. 1998).
4. On January 31, 2001, the Court of Criminal Appeals denied relief on
the appellant's initial state habeas petition, cause number 9407130-A, adopting the
trial court's findings of fact and conclusions of law. Ex parte Raby, No. 58,131-
01 (Tex. Crim. App. Jan. 31, 2001)(not designated for publication).
5. On June 29, 2005, the Court of Criminal Appeals overruled the trial
court's denial of the appellant's Chapter 64 motion for DNA testing on appeal,
granting the motion as to specific items of evidence. Raby v. State, No. AP-74,930
(Tex. Crim. App. June 29, 2005)(not designated for publication).
6. On January 11, 2013, the trial court entered findings concluding that
the results of the Chapter 64 DNA testing were not favorable to the appellant.
7. On April 22, 2015, in an unpublished opinion, the Court of Criminal
Appeals overruled the appellant's points of error and affirmed the trial court's
findings that the results of the post-conviction DNA testing were not favorable to
the appellant. Raby v. State, No. AP-76,970 (Tex. Crim. App. Apr. 22, 2015)(not
designated for publication).
Page 2 of 4
8. The State respectfully requests that the Court of Criminal Appeals'
April 22, 2015 opinion be pubhshed under Rule 47.4 of the Texas Rules of
Appellate Procedure. If published, this Court's opinion would provide crucial
guidance for Texas courts in examining and determining the favorability of
Chapter 64 post-conviction DNA testing results.
WHEREFORE, the State respectfully prays that the Court of Criminal
Appeals grant the foregoing motion to publish the April 22, 2015 opinion in the
instant case, and will publish the opinion in its entirety.
Respectfully submitted,
/s/
LYNN P. HARDA WAY
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-6657
Fax Number (713) 755-5809
[email protected]
State Bar Number: 08948520
Page 3 of 4
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been mailed to Sarah M. Frazier, appellant's attorney of record, at the following
address on April 25, 2015:
Sarah M. Frazier
Berg & Androphy
3704 Travis Street
Houston, Texas 77002
[email protected]
/s/
Lynn P. Hardaway
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-6657
Fax Number (713) 755-5809
[email protected]
State Bar Number: 08948520
Page 4 of 4
| {
"pile_set_name": "FreeLaw"
} |
Affirmed and Memorandum Opinion
filed July 22, 2010
In
The
Fourteenth
Court of Appeals
NO. 14-08-00749-CR
David Eric
Molinar, Appellant
v.
The State of
Texas, Appellee
On Appeal from
the 262nd District Court
Harris County, Texas
Trial Court
Cause No. 999250
MEMORANDUM OPINION
After the trial court found David Eric Molinar violated
his probation by failing to complete sex-offender counseling, it revoked his
community supervision and sentenced him to ten years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. Molinar
appeals the ruling, arguing the trial court erred by (1) denying his motion for
continuance; (2) denying his motion to quash; (3) admitting evidence that
violated constitutional prohibitions against double jeopardy; and (4) admitting
into evidence his polygraph-examination results. He also argues that the trial
court abused its discretion by revoking his community supervision for failing
to admit guilt. Molinar complains that the revocation (5) violated his
constitutional right against self-incrimination and (6) was supported by insufficient
evidence. We affirm.
Facts
In 2005, a jury
found David Eric Molinar guilty of the felony offense of sexual assault of a
child. The jury assessed Molinar’s punishment at ten years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice, but
recommended Molinar be placed on community supervision for ten years. In 2007,
the State filed a motion to revoke Molinar’s community supervision because he
allegedly violated the conditions of his probation by failing to: (1) submit to
sex-offender-treatment evaluation immediately upon referral; (2) attend and
participate in such a program and to submit written proof to the community-supervision
officer; and (3) be successfully discharged from the program. The trial court
held a hearing on the motion, and Molinar pleaded true to at least one of
State’s allegations. After hearing all the evidence, the trial court found the
State’s allegations true, revoked Molinar’s community supervision, and
sentenced Molinar to ten years’ confinement in the Institutional Division of
the Texas Department of Criminal Justice. This appeal followed.
Motion for Continuance
Molinar complains
the trial court erred by refusing to grant his motion for continuance, which he
claims violated his due-process right to present a defense. He sought the
continuance to subpoena several other patients from the sex-offender-treatment
program that he was attending. Molinar wanted these witnesses to testify about
his behavior during the treatment sessions. The State contends Molinar did not
preserve his issue for review because his motion for continuance was oral, and
the motion should have been in writing and filed to conform to the statutory
requirements. Additionally, the State argues Molinar failed to file a motion
for new trial, which is also necessary to preserve error for review.[1]
The requirements
for a continuance motion are provided in Articles 29.03 and 29.08 of the Texas
Code of Criminal Procedure. Anderson v. State, 301 S.W.3d 276, 278–79
(Tex. Crim. App. 2009); see Tex. Code Crim. Proc. Ann. arts. 29.03,
29.08 (Vernon 2006). The State or the defendant may seek to continue a
criminal action if a written motion is filed that demonstrates sufficient cause
for the delay. Tex. Code Crim. Proc. Ann. art. 29.03. The motion for
continuance must also be sworn by a person who has personal knowledge of the
facts in the motion. Tex. Code Crim. Proc. Ann. art. 29.08. The Court of
Criminal Appeals has interpreted these statutes to require a party file a
sworn, written motion for continuance to preserve the issue for appeal if the
trial court denies the motion. Anderson, 301 S.W.3d at 279; Dewberry
v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (stating “motion for
continuance not in writing and not sworn preserves nothing for review”).
Recently, the Court
of Criminal Appeals was confronted with the issue of whether there is a “due
process exception” to the statutory requirements for a continuance motion. See
Anderson, 301 S.W.3d at 278–80. In reviewing the denial of an oral
motion for continuance, the Corpus Christi court of appeals concluded a party
may appeal the denial of a continuance if it amounted to a due-process denial,
specifically the right to present a defense. Id. at 278. Thus, the
appellate court acknowledged the procedural requirement, but overcame it by
invoking a “due process exception.” Id. at 278. The Court of Criminal
Appeals held that the Corpus Christi court erred in concluding the appellant need
not preserve the error because the right to present a complete defense is
subject to forfeiture if not properly preserved. Id. at 279–80
(discussing “there is nothing to prohibit Articles 29.03 and 29.08 as operating
as a rule of procedural default”). Because there is no “due process exception”
to the preservation requirements of Articles 29.03 and 29.08, the Court of
Criminal Appeals held the appellant failed to preserve his claim. Id.
at 280–81.
As in Anderson,
Molinar did not file a sworn written motion for continuance. Although Molinar
received a ruling on the motion, he failed to follow the proper procedural
requirements; hence, we cannot review the trial court’s denial of his motion
for a continuance. Accordingly we overrule Molinar’s first issue.
Motion to Quash
In his second
issue, Molinar complains the trial court erred when it improperly denied his
motion to quash the allegations against him in the State’s motion to revoke.
Molinar claims the allegations were vague and “cannot be defended.” The State
contends Molinar failed to preserve this issue for review because his motion to
quash was not in writing, as required by the Texas Code of Criminal Procedure.[2]
All motions to
set aside an information or an indictment and all special pleas and exceptions
must be in writing. Tex. Code Crim. Proc. Ann. art. 27.10 (Vernon 2006); Roy
v. State, 76 S.W.3d 87, 99 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see
Faulks v. State, 528 S.W.2d 607, 609 (Tex. Crim. App. 1975). When the
trial court overrules an oral motion to quash, it preserves nothing on appeal
because the motion was not in writing. See Quarles v. State, 398 S.W.2d
935, 937 (Tex. Crim. App. 1966); Crum v. State, 946 S.W.2d 349, 358
(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). Because we have only
Molinar’s oral motion to quash before us, Molinar has not preserved this issue
for review. See Crum, 946 S.W.2d at 358. Accordingly, we overrule
Molinar’s second issue.
Double Jeopardy
In his third
issue, Molinar contends the trial court violated his constitutional protections
against double jeopardy. Specifically, Molinar complains the trial court based
his probation revocation on disruptive conduct, which was previously used
against Molinar to jail him for fourteen days; hence, he was punished multiple
times for one offense. The State first claims Molinar waived this issue. But
it then asserts even if Molinar preserved this issue for review, Molinar’s
fourteen-day stay in jail was not punishment, but a modified condition of his
community supervision.
The Double
Jeopardy Clause provides three separate protections for the accused. Brown
v. Ohio, 432 U.S. 161, 165 (1977). These protections include: (1) the
protection against a second prosecution for the same offense after the accused
was acquitted; (2) the protection against a second prosecution for the same
offense after the accused was convicted; and (3) the protection against
multiple punishments for the same offense. Id.; Ex parte Stover,
946 S.W.2d 343, 345 (Tex. Crim. App. 1997); Ex parte Broxton, 888 S.W.2d
23, 25 (Tex. Crim. App. 1994). Here, Molinar contends the trial court violated
the third Double Jeopardy Clause protection.
When Molinar was placed on community supervision, he
signed a document entitled “Conditions to Community Supervision.” By signing
this document, Molinar agreed the court could alter or modify the conditions of
his community supervision. According to the record and the trial judge’s
clarification of the record, while Molinar was on probation, “He received 14
days as a condition of his probation for his alleged disruption at group
therapy, and he was given a choice of either having a hearing on the allegation
or taking 14 days as a condition of his probation. He chose after consulting
with his attorney, to choose the 14 days.” Thus, the jail time Molinar served
was not a “punishment,” but a modified condition of his community supervision
that he agreed to fulfill. The “Conditions to Community Supervision” document
Molinar signed informed him that his conditions could be modified; therefore,
the fourteen days in jail do not constitute a punishment from which there could
be any double-jeopardy implications.
Additionally, the record reflects after Molinar
completed his fourteen-day jail sentence, he was allowed to return to the sex-offender-treatment
program. Because he was never discharged after successful completion of the
program, he violated one of his community-supervision conditions. Molinar’s
community supervision was revoked because he failed to submit to
sex-offender-treatment evaluation, failed to attend and participate in such a
program, and failed to submit written proof to his community-supervision
officer that he had participated. The trial court’s order does not indicate whether
Molinar’s community supervision was revoked because of the conduct that led to
the modification of his probation. Double jeopardy does not apply.
Accordingly, we overrule Molinar’s third issue on appeal.
Polygraph
In his fourth issue, Molinar contends the trial court
erred, during the revocation hearing, by admitting evidence of the results of
his polygraph examination. The State claims the evidence of Molinar’s
polygraph results had previously been entered into evidence without objection;
therefore, Molinar failed to properly preserve error on this issue.
Molinar
is correct that evidence of polygraph results is inadmissible for all
purposes. Woods v. State, 301 S.W.3d 327, 333 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (citing Tennard v. State, 802 S.W.2d 678, 683
(Tex. Crim. App. 1990)). Both the results of a polygraph examination and the
“fact” of failing a polygraph examination are inadmissible. Nesbit v. State,
227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007). A party must object, however,
when evidence is presented in order to preserve a complaint on appeal. Ethington
v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). The objection must
be timely, proper, and specific. Moff v. State, 131 S.W.3d 485, 489 (Tex.
Crim. App. 2004) (explaining how the objection must be specific unless the
context makes the particular ground apparent). The party must object as soon
as “the objectionable nature of the evidence” becomes apparent. Ethington,
819 S.W.2d at 858. A party must object every time the inadmissible evidence is
offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)
(citing Ethington, 819 S.W.2d at 858).[3]
If the objection is not continuously noted, the error in the admission of
evidence will be cured when the same evidence is admitted elsewhere without
objection. Valle v. State, 109 S.W.3d 500, 509–10 (Tex. Crim. App.
2003); Ethington, 819 S.W.2d at 858 (citing Hudson v. State, 675
S.W.2d 507, 511 (Tex. Crim. App. 1984)). The error, therefore, would be
rendered harmless. Dickson v. State, 246 S.W.3d 733, 744 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d).
Here,
before testimony about Molinar’s polygraph results was introduced, the State
had entered into evidence State’s Exhibit 1, which was a letter from Molinar’s
therapist Dr. Edd to Molinar’s probation officer. In the letter, Dr. Edd stated,
“On April 18, [Molinar] blandly informed the group that he failed his instant
offense polygraph on April 16 and seemed not to think much of it.” The State
introduced this letter without any objection from Molinar. Additionally, after
the trial court overruled Molinar’s objection to the polygraph information,
which the trial court expressly stated he would not consider if it was not
admissible, Molinar did not object to subsequent questions about the polygraph
information. See Valle, 109 S.W.3d at 509–10. Molinar’s complaint is
without merit. Accordingly, we overrule his fourth issue.
Self-Incrimination
In his fifth issue, Molinar argues the trial court
abused its discretion by revoking his community supervision because he failed to
admit his guilt during treatment sessions. Molinar complains that requiring
him to make an admission of guilt violated his constitutional right to not
incriminate himself. The State contends Molinar did not invoke his privilege
against self-incrimination; therefore, the right was not violated.
Furthermore, the State argues the trial court did not use this evidence as a
basis for revoking Molinar’s community supervision.
Under the Fifth
Amendment Self-Incrimination Clause, no person “shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V; McKune
v. Lile, 536 U.S. 24, 35 (2002). A criminal defendant does not lose this
privilege because he has been convicted of a crime. Chapman v. State,
115 S.W.3d 1, 5–6 (Tex. Crim. App. 2003). Although Molinar claims his right
against self incrimination was violated, he does not cite any cases or provide
this court with any guidance in determining how the right was violated. See
Tex. R. App. P. 38.1(i). Additionally, the trial court stated it was not using
this evidence as a basis for revocation. The fact remains Molinar’s probation
was conditioned on Molinar attending and participating in the sex-offender
treatment as well as being successfully discharged from the program.[4] Without
citing any authority to either explain how his Fifth Amendment rights were
violated or how any of the conditions of his probation are unconstitutional, he
has not adequately briefed the issue for this court to review. See Tex.
R. App. P. 38.1(i). Therefore, we overrule his fifth issue.
Sufficiency of the Evidence
Molinar contends
the evidence in the record does not support the trial court’s ruling to revoke
his probation. He complains the only evidence concerning his alleged
disruptive behavior during the treatment sessions was from Dr. Edd. The State argues
the trial court did not abuse its discretion in revoking Molinar’s probation
because Molinar pleaded “true” to at least one of the violations; hence, the
plea of “true” alone is enough evidence to support the revocation.
We review a trial
court’s decision to revoke probation for an abuse of discretion, and we examine
the evidence in the light most favorable to the trial court’s findings. Cardona
v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984); see Allen v.
State, 681 S.W.2d 183, 184 (Tex. App.—Houston [14th Dist.] 1984, no pet.).
The State must prove every element of the ground asserted for revocation by a
preponderance of the evidence. Moore v. State, 11 S.W.3d 495, 498 (Tex.
App.—Houston [14th Dist.] 2000, no pet.); see Cobb v. State, 851 S.W.2d
871, 873 (Tex. Crim. App. 1993); McCullough v. State, 710 S.W.2d 142,
145 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d). This burden is
satisfied when the great weight of credible evidence creates a reasonable
belief that it is more likely than not that the defendant violated a condition
of probation as alleged in the motion to revoke. See Joseph v. State, 3
S.W.3d 627, 640 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Furthermore,
the State does not have to prove every violation alleged; one violated
probation condition is enough to support a trial court’s ruling to revoke
probation. Moore, 11 S.W.3d at 498.
In Texas, it is
well-established law that the sufficiency of the evidence of a probation
revocation cannot be challenged in the face of a plea of “true.” Moses v.
State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); see Rincon v. State,
615 S.W.2d 746, 747 (Tex. Crim. App. [Panel Op.] 1981); Jimenez v. State,
552 S.W.2d 469, 472 (Tex. Crim. App. 1977). The record reflects Molinar
pleaded “true” to at least one of the three allegations. Because Molinar
entered a plea of “true,” he cannot now challenge the sufficiency of the
evidence, even though he did not plea “true” to all of the allegations. See
Rodriguez v. State, 2 S.W.3d 744, 746 (Tex. App.—Houston [14th Dist.] 1999,
no pet.) (discussing if several probation violations are alleged, the court
shall revoke probation if proof of any of the allegations is sufficient).
Accordingly, Molinar’s sixth issue is overruled.
*
* *
For the foregoing reasons, we affirm the trial
court’s judgment.
/s/ Jeffrey
V. Brown
Justice
Panel consists of Justices Yates,
Seymore, and Brown.
Do
Not Publish — Tex. R. App. P. 47.2(b).
[1]
In Harrison v. State, the Court of Criminal Appeals expressly disavowed
its previous precedent requiring a motion for new trial to preserve error for a
denial of a motion for continuance. 187 S.W.3d 429, 433 (Tex. Crim. App.
2005). Hence, the State improperly relies on this proposition as an argument
for how Molinar failed to preserve error.
[2]
At the beginning of the revocation proceedings, Molinar’s attorney stated he
filed a motion to quash. But the motion is not in the record on appeal and
Molinar does not discuss or refer to the alleged written motion in his brief;
therefore, we will only consider Molinar’s oral motion to quash. See
Tex. R. App. P. 33.1(a) (stating to present the complaint for appellate review,
the record must indicate the complaint was made to the trial court by motion).
[3]
There are two exceptions to the continuous-objection requirement: (1) obtain a
running objection, or (2) request a hearing outside the jury’s presence. Martinez,
98 S.W.3d at 193.
[4]
In a case similar to Molinar’s situation, the appellant claimed his probation
was revoked without reason and the revocation was a violation of his
due-process rights. Pickett v. State, No. 05-98-01174-CR, 1999 WL
793397, at *1 (Tex. App.—Dallas Oct. 6, 1999, no pet.) (not designated for
publication). The State alleged the appellant was unsuccessfully discharged
from two sex-offender-treatment programs, which violated a condition of his
probation. Id. The appellant stated he attended the program, paid all
the fees, and abided by all the rules, but the court noted the appellant
refused to take responsibility for his offense and he continued to maintain his
innocence. Id. In the second program, the appellant did not actively
participate in the program by failing to present his sexual history, minimizing
his offense, and refusing to present a relapse plan to his group. Id.
The court concluded the probation conditions not only required the appellant to
attend the sessions, but the appellant needed to abide by treatment directives
and continue his treatment. Id. at *2. Because the appellant failed to
complete this condition, the court held the State successfully demonstrated the
appellant violated his probation. Id.
| {
"pile_set_name": "FreeLaw"
} |
201 Wis.2d 1 (1996)
548 N.W.2d 100
GENERAL CASUALTY COMPANY OF WISCONSIN, Plaintiff-Respondent,[]
v.
Donald A. HILLS d/b/a Hills Standard, Defendant-Appellant,
ABC INSURANCE COMPANY and DEF Insurance Company, Defendants.
No. 95-2261.
Court of Appeals of Wisconsin.
Submitted on briefs February 5, 1996.
Decided March 12, 1996.
*3 On behalf of the defendant-appellant, the cause was submitted on the briefs of Matthew A. Biegert of Doar, Drill & Skow, S.C. of New Richmond.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas N. Harrington, Laura E. Schuett, and Lee Anne Neumann of Cook & Franke S.C. of Milwaukee.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J.
Donald Hills appeals a summary judgment in favor of his insurer, General Casualty Company of Wisconsin, that declared General Casualty has no duty to defend or indemnify Hills in a separate third-party suit brought against Hills in federal court. Because we conclude General Casualty's insurance policies require it to defend and indemnify Hills in the federal action, we reverse and remand for further proceedings.
*4 The facts are undisputed. Hills has owned and operated Don's Standard[1] gasoline station in Rice Lake, Wisconsin, since 1961. Arrowhead Refining Company operated a used oil recycling business in Germantown, Minnesota, from 1961 to 1977. Hills, in the regular and normal course of business, entered into an agreement with Arrowhead Refining under which Arrowhead Refining agreed to pick up waste at Don's Standard and transport it to the Arrowhead site in Minnesota. In approximately 1976, environmental contamination was allegedly discovered at or near the Arrowhead site. Arrowhead Refining subsequently discontinued its used oil recycling operations.
Eventually, the Arrowhead site was placed on the National Priorities List (NPL) by the United States Environmental Protection Agency. The United States brought an action in the United States District Court for the District of Minnesota against Arrowhead Refining and several other defendants for the reimbursement of response costs. Simultaneously, a consent decree was entered in the federal court. The consent decree was a negotiated settlement between the government and various defendants which outlined remedial work to be performed and described the reimbursement of response costs.
Hills was one of hundreds named as third-party defendants in the federal court action by Arrowhead Refining and other defendants, action as third-party plaintiffs (collectively, Arrowhead). Arrowhead sought recovery from Hills for past and future response costs *5 associated with the Arrowhead site. Arrowhead's third-party complaint made four claims against Hills: (1) a claim under CERCLA;[2] (2) a claim under the Minnesota Environmental Response and Liability Act (MERLA), §§ 115B.01-115B.24, Minn. Stats.;[3] (3) a common law claim for contribution; and (4) a claim for unjust enrichment.
General Casualty filed this declaratory judgment action in Wisconsin circuit court requesting that the trial court declare General Casualty has no duty to defend or indemnify Hills in the third-party action.[4] Hills filed a counterclaim, alleging that General Casualty *6 had breached its duty to defend Hills. General Casualty filed a motion for summary judgment, alleging that it has no duty to defend or indemnify Hills because there has not been any "suit seeking damages" filed against Hills. The trial court granted the judgment, and also dismissed Hills' counterclaim against General Casualty.[5] Hills now appeals.
Hills contends the insurance policies issued to him by General Casualty afford insurance coverage for the third-party claim against him. Over the years, General Casualty issued several insurance policies to Hills, doing business as Don's Standard. The policies in effect from June 1976 to June 1979 provide in pertinent part:
Coverage 2 Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined. (Emphasis in original.)
The policy in effect from June 1987 to June 1988 provides:
We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies caused by an accident resulting from garage operations. (Emphasis in original.)
*7 The policy in effect for certain policy periods from June 1988 to June 1991 provides:
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies caused by an "accident" and resulting from "garage operations."
[1]
Our review of summary judgment is de novo. Park Bancorporation, Inc. v. Sletteland, 182 Wis. 2d 131, 140, 513 N.W.2d 609, 613 (Ct. App. 1994). When reviewing summary judgment, we apply the standard set forth in § 802.08(2), STATS., in the same manner as the circuit court. Kreinz v. NDII Secs. Corp., 138 Wis. 2d 204, 209, 406 N.W.2d 164, 166 (Ct. App. 1987). This appeal, based on undisputed facts, concerns the final step in summary judgment: determining whether General Casualty is entitled to judgment as a matter of law on the theory that the insurance policies do not provide coverage for Hills' defense or indemnification in the federal action.
[2, 3]
The interpretation of an insurance policy is a question of law this court decides independently of the circuit court. Smith v. Atlantic Mut. Ins. Co., 155 Wis. 2d 808, 810, 456 N.W.2d 597, 598 (1990). Insurance policies are controlled by the same principles of law applicable to other contracts. Id.
At the outset, we recognize that this court must analyze whether there is coverage for Hills, a Wisconsin insured, under the insurance policies issued by a Wisconsin insurer, for claims under federal and Minnesota law. Neither party has raised a choice of law issue. Instead, the parties agree that Wisconsin law applies *8 for purposes of determining on summary judgment whether there is insurance coverage. Thus, this court is faced with the task of determining whether, under Wisconsin law, the insurance policies' language requires General Casualty to defend and indemnify Hills in the third-party federal action against him.
Our supreme court addressed insurance coverage for environmental cleanup in City of Edgerton v. General Cas. Co., 184 Wis. 2d 750, 517 N.W.2d 463 (1994). The plaintiffs in Edgerton were the City of Edgerton and the owner of a landfill site, Edgerton Sand and Gravel, Inc. Id. at 754, 758, 517 N.W.2d at 466, 468. The site of the landfill was owned by the Sweeney family (owners of ES & G) and was used as a dump and burn site for waste materials from the early 1950s through the time of its closing in December 1984. Id. at 758 n.5, 517 N.W.2d at 468 n.5. The City of Edgerton leased the site from 1968 to 1984 for landfill operations. Id.
Both the city and ES & G received letters from the Wisconsin Department of Natural Resources indicating the DNR suspected groundwater contamination at the landfill. Id. at 759-60, 517 N.W.2d at 468. The Environmental Protection Agency also sent ES & G and the city a letter requesting information regarding the disposal of hazardous substances at the landfill. Id. Subsequent letters from the DNR ordered the city and ES & G to propose a plan to remediate the site. Id. at 760, 517 N.W.2d at 468. Failure to respond would result in the listing of the site on CERCLA's National Priorities List, or state action. Id. at 760-62, 517 N.W.2d at 469.
The city and ES & G asked their comprehensive general liability (CGL) carriers to provide coverage for defense costs as well as any liability resulting from *9 Environmental Protection Agency or DNR claims. Id. at 762, 517 N.W.2d at 469. One of the nearly identical CGL policies at issue provided:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages....
Id. at 769, 517 N.W.2d at 472 (emphasis deleted). The carriers refused to provide coverage. Id. at 762, 517 N.W.2d at 469. Edgerton held that neither a potentially responsible party (PRP) letter nor a comparable notification letter by a state agency such as the DNR triggers the insurers' duty to defend because the letters do not constitute a "suit" under the CGL policies. Id. at 771, 774, 517 N.W.2d at 473, 474.
Additionally, the court went on to hold that the CGL policies did not "provide coverage for Superfund response costs, since such costs do not constitute damages." Id. at 782, 517 N.W.2d at 477. Edgerton quoted with approval language from Shorewood School Dist. v. Wausau Ins. Cos., 170 Wis. 2d 347, 368, 369-70, 488 N.W.2d 82, 89, 90 (1992) (emphasis in original):
"Damages" as used in ... insurance policies unambiguously means legal damages. It is legal compensation for past wrongs or injuries and is generally pecuniary in nature. The term "damages" does not encompass the cost of complying with an injunctive decree.
....
*10 [The] limited construction of the term "damages" is consistent with the basic grant of coverage in the insurance policies. The insurers agreed to pay "all sums which the insured shall become legally obligated to pay as damages." The insurers did not agree to pay "all sums which the insured shall become legally obligated to pay." The addition of "as damages" serves as a qualifier, a limit to coverage.
See Edgerton, 184 Wis. 2d at 783-84, 517 N.W.2d at 478. Thus, Edgerton stands for the proposition that letters from an environmental agency do not constitute a suit and that the agency's order to an owner or occupier of land to remediate the land is nothing more than an order for injunctive relief.
In the instant case, there is no question that a suit has been filed against Hills. At issue is whether the third-party suit against Hills is a suit for damages that requires General Casualty to defend and indemnify Hills. For the reasons discussed herein, we conclude Edgerton did not address the situation presented in this case and furthermore, that the suit against Hills is a suit seeking "damages" as that term is used in the General Casualty insurance policies. Therefore, we conclude General Casualty must provide Hills with defense and indemnification.
The facts in Edgerton were notably different from the facts before this court. First, the insureds in Edgerton sought coverage for contamination of property that they owned or controlled. Here, Hills never owned or controlled the Arrowhead site. Instead, Hills entered into an agreement with Arrowhead under which Arrowhead agreed to pick up waste at Hills' service station and transport it to the Arrowhead site. Here, private individuals and companies seek monetary damages from Hills for Hills' alleged contribution to *11 the contamination of the privately-owned property for which Hills may be liable under federal law. The liability policies at issue promised to pay "all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property" and "all sums the insured legally must pay as damages because of bodily injury or property damage." Arrowhead seeks judgment against Hills that will make him legally obligated to pay damages for contributing to the contamination of Arrowhead's property.
Second, the government in Edgerton directed the city and ES & G to propose a plan to remediate the contaminated landfill. Edgerton stands for the proposition that an order for remediation is not damages. Instead, an order is an injunctive decree which requires a party to perform specific acts. Under Edgerton, the term "damages" does not encompass the cost of complying with an injunctive decree. Id. at 783, 517 N.W.2d at 478. In contrast, Edgerton states that the term "damages" as it is used in insurance policies unambiguously means legal damages, defined as legal compensation for past wrongs or injuries. Id. at 784, 517 N.W.2d at 478. Here, Arrowhead is seeking monetary compensation from Hills for costs it has incurred or will incur to clean up the site contamination to which Hills contributed as one of many third-party defendants that recycled their oil through Arrowhead. Arrowhead's suit for monetary compensation is a request for legal damages, not injunctive relief.
[4]
The distinctions between Edgerton and this case are critical. The function of this court when reviewing insurance policies is to further the insured's reasonable expectations of coverage while meeting the intent of both parties to the contract. Kremers-Urban Co. v. *12 American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156, 163 (1984). We conclude the damages Arrowhead seeks from Hills are the same "damages" for which General Casualty agreed to provide coverage.
[5]
General Casualty argues that because the relief Arrowhead seeks is solely the recovery of response and removal costs, there is no coverage because "Edgerton specifically held that such relief does not constitute `damages' within the context of a liability policy." Under General Casualty's reasoning, if Arrowhead is required to remove contamination and remediate the site under state or federal law, Hills' insurer, General Casualty, is not required to indemnify Hills for his contribution to the contamination of Arrowhead's property. We conclude such a result is neither required by Edgerton nor consistent with the purpose of CGL policies: to indemnify insureds for damage they cause to others' property. See Bausch & Lomb v. Utica Mutual, 625 A.2d 1021, 1033 (Md. 1993) ("A hallmark of the comprehensive general liability policy is that it insures against injury done to a third party's property, in contradistinction to an `all-risks' policy also covering losses sustained by the policy-holder."). While the insureds in Edgerton were not entitled to coverage under their own liability policies for contamination they inflicted on the land they owned or leased, Hills is entitled to indemnification for his contribution to the contamination on Arrowhead's property, even if the property damage is cleaned up in response to a government directive.
The parties' remaining arguments debate whether the Arrowhead claim under MERLA is similar to a claim under CERCLA. This debate is premised on the belief of both parties that Edgerton held there is no insurance coverage for environmental response cases *13 involving CERCLA. Hills argues that MERLA is broader than CERCLA so that even if this court interpreted Edgerton broadly, we could still find coverage for the MERLA claim. Because under our interpretation of Edgerton, General Casualty has a duty to defend and indemnify Hills against all of Arrowhead's claims, we will not address the differences between MERLA and CERCLA.
Additionally, the parties addressed the claims of contribution and unjust enrichment. Hills argues that both claims are separate and distinct from any CERCLA action so that even if there is no coverage for the CERCLA claim, there is coverage for the unjust enrichment and contribution claims. General Casualty argues the contribution and unjust enrichment claims are derivative of the underlying claim for response costs and could not exist without it. Because we conclude there is coverage for Hills' liability arising out of Arrowhead's claim, we need not address whether the coverage that also exists for the contribution and unjust enrichment claims is provided by the policies based on their status as independent claims or as derivative claims.
We conclude the third-party suit against Hills seeks "damages" as that term is used in the General Casualty insurance policies. Therefore, we reverse the trial court's summary judgment that declared General Casualty has no duty to defend or indemnify Hills in the third-party action and remand for further proceedings.
By the Court.Judgment reversed and cause remanded.
NOTES
[] Petition to review granted.
[1] Although the case caption identifies Hills' business as "Hills Standard," the parties and the insurance policies refer to the business as "Don's Standard." There is no dispute the parties are referring to the same business, which we will identify as Don's Standard for purposes of this appeal.
[2] CERLCA stands for Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is codified at 42 U.S.C.A. §§ 9601-75 (1995). Arrowhead's complaint states that if it is found liable in whole or in part to the United States, it seeks recovery of, reimbursement for and/or contribution towards all response costs, including interest, that may have been or may be incurred in the future in any way relating to the Arrowhead site. If Arrowhead is not liable in whole or in part to the United States, it seeks from Hills recovery or reimbursement of all response costs, including interest.
[3] Arrowhead's complaint states that if it is found liable in whole or in part to the United States, it seeks recovery of, reimbursement for and/or contribution towards all response costs, including interest, that may have been or in the future will be incurred in any way relating to the Arrowhead site. Alternatively, if Arrowhead is not liable to the United States, it seeks from Hills recovery or reimbursement of all reasonable and necessary removal costs it incurred with respect to the Arrowhead site.
[4] General Casualty alleged it has no duty to defend or indemnify Hills for ten reasons, including: response costs do not constitute damages within the context of the General Casualty policies, there was no "occurrence" within the policy period of any policy, there is an applicable pollution exclusion, the pollution was expected or intended (and therefore was not an accident), and others.
[5] General Casualty moved for summary judgment based on only one of the ten claims it alleged in its complaint. Therefore, we do not address the remaining claims. Instead, we reverse and remand the case to the trial court for further consideration of General Casualty's remaining claims and Hills' counterclaim.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1685
OLLYE TINE SNOW REYNOLDS; BOBBY O. REYNOLDS,
Plaintiffs - Appellants,
versus
FAIRFAX COUNTY PUBLIC SCHOOLS; FAIRFAX COUNTY
SCHOOL BOARD; ROBERT SPILLANE, Former Superin-
tendent; ALAN LEIS, Former Director of Person-
nel then Deputy Superintendent, now Interim;
LOUDOUN COUNTY PUBLIC SCHOOLS; MANASSAS CITY
PUBLIC SCHOOLS; FALLS CHURCH CITY PUBLIC
SCHOOLS; ARLINGTON COUNTY PUBLIC SCHOOLS,
Defendants - Appellees,
and
ST. MARY’S COLLEGE,
Defendant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Claude M. Hilton, Chief District
Judge; Theresa Carroll Buchanan, Magistrate Judge. (CA-98-1077-A)
Submitted: October 14, 1999 Decided: November 5, 1999
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ollye Tine Snow Reynolds, Bobby O. Reynolds, Appellants Pro Se.
Ingo Frank Burghardt, HUNTON & WILLIAMS, McLean, Virginia; Richard
Mark Dare, HAZEL & THOMAS, P.C., Falls Church, Virginia; Martin
Ritchie Crim, SMITH & DAVENPORT, Manassas, Virginia; Francis Joseph
Prior, Jr., SICILIANO, ELLIS, DYER & BOCCAROSSE; Carol Winfield
McCoskrie, COUNTY ATTORNEY’S OFFICE, Arlington, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Ollye Tine Snow Reynolds and Bobby Reynolds appeal from the
district court’s orders dismissing this civil action and denying
the motion for reconsideration and other post-judgment motions. We
have reviewed the record and the district court’s orders and find
no reversible error. Accordingly, we affirm on the reasoning of
the district court. See Reynolds v. Fairfax County Pub. Sch. Sys.,
No. CA-98-1077-A (E.D. Va. July 24, Sept. 27, Sept. 28, Oct. 14,
Oct. 27, Dec. 19, Dec. 29, 1998 & Jan. 5, Jan. 11, Jan. 22, Feb. 1,
Feb. 2, Feb. 9, Feb. 26, Mar. 19, Apr. 13, and Apr. 26, 1999). 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. The motions to de-
fer consideration of the appeal and for a restraining order are
denied.
AFFIRMED
3
| {
"pile_set_name": "FreeLaw"
} |
881 N.E.2d 1060 (2008)
William C. NASH, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 33A01-0710-CR-457.
Court of Appeals of Indiana.
March 7, 2008.
*1061 John T. Wilson, Anderson, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BAILEY, Judge.
Case Summary
Appellant-Defendant William C. Nash ("Nash") appeals his conviction and sentence for Battery By Body Waste, as a Class C felony.[1] We affirm.
Issues
Nash raises two issues on appeal:
I. Whether there was sufficient evidence to support his conviction; and
II. Whether the trial court abused its discretion in failing to assign more weight to his mental illness as a mitigating circumstance.
Facts and Procedural History
On March 20, 2006, Nash was an inmate in the New Castle Correctional Facility's mental health unit. Nash became very upset, claiming that he wanted to see the doctor and needed his medication. In response *1062 to his requests, Robbin Blattner ("Blattner"), a nurse, examined Nash and submitted her findings to the doctor. The doctor reviewed Nash's chart and put Nash on the call list for the next day. When Blattner informed Nash, Nash became upset and threw a sandwich at Blattner through the cuff port[2] of his cell door. Later in the day, Nash called Blattner names and threatened to kill her children. The next time Blattner passed by Nash's cell Nash threw a cup of urine and feces at her, which landed on her shoes and on the box she was carrying.
An investigator, Joseph Rice ("Rice"), was called to the facility to write a report of the incident. When he arrived, Rice observed urine and feces on Blattner's shoes and equipment. Then Rice interviewed Nash. During the interview, Nash was in a four-way restraint plus chest strap per the orders of the facility's doctor. Rice read Nash his rights to which Nash responded that he understood. In explaining what happened, Nash said: "I did it. I threw it at her. I didn't get it in her face or nothing." State's Exhibit 8. When asked what he threw, he replied: "piss and sh* *. Listen sir, I have HIV and an STD from getting raped. She wouldn't help me so I threw it at her." Id. After discussing what assault with bodily fluids involved, Nash said, "Yea, what I did to that b* * * * nurse," and then laughed. Id. Rice described Nash's demeanor throughout the interview as congenial until Rice did not respond to Nash's question of whether there would be an "outside case" against him. Trial transcript at 56. Nash then stated, "You can't, I'm in mental health and I[']m not responsible for my action." State's Ex. 8.
The State charged Nash with Battery by Body Waste, as a Class C felony, based on knowingly or recklessly failing to know that the bodily fluid was infected with HIV. A jury found Nash guilty as charged. After the sentencing hearing, the trial court sentenced Nash to six years imprisonment.
Nash now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
Nash presents two contentions regarding the sufficiency of the evidence. First, he argues that the State failed to prove that Blattner was a corrections officer. Second, he contends that the evidence does not establish that Nash acted with the requisite intent.
In addressing a claim of insufficient evidence, we do not reweigh the evidence nor do we reevaluate the credibility of witnesses. Rohr v. State, 866 N.E.2d 242, 248 (Ind.2007), reh'g denied. We view the evidence most favorable to the verdict and the reasonable inferences therefrom and will affirm the conviction if there is substantial evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
To convict Nash, as charged, the State had to prove that Nash knowingly or intentionally in a rude, insolent, or angry manner placed body fluid or waste on a corrections officer, Blattner, and that Nash knew or recklessly failed to know that the body fluid or waste was infected with HIV. See Ind.Code § 35-42-2-6(e). Indiana Code Section 35-42-2-6(a) defines a "corrections officer" to include persons employed by (1) the department of correction; *1063 (2) a law enforcement agency; (3) a probation department; (4) a county jail; or (5) a circuit, superior, county, probate, city, or town court.
Blattner testified, in relevant part, as follows:
Q: Okay. Prior to being employed at Glen Oaks, did you have an occasion to be employed at the New Castle Correctional Facility here in New Castle?
A: Yes.
Q: What's your occupation?
A: I'm a nurse.
. . . .
Q: Okay. When you were working for, at the New Castle Correctional Facility, were you working for the State of Indiana or were you employed by somebody else?
A: CN . . .
Q: Pardon me?
A: Correctional, Correctional Medical Staffing or something like that. Q: Okay. So, it wasn't the State of Indiana, is that . . .
A: I don'tno, they weren't there anymore.
Q: Okay. How long were you employed at the Correctional Facility?
A: For that period of time, probably four months.
Tr. trans. at 31-32. Nash contends that because Blattner was not employed by the correctional facility, but by a staffing agency, that she does not fit the statutory definition of a corrections officer. This poses a question of statutory interpretation as to the meaning of "employed" in Indiana Code Section 35-42-2-6(a).
A question of statutory interpretation is a matter of law. Maynard v. State, 859 N.E.2d 1272, 1274 (Ind.Ct.App. 2007), trans. denied. In such interpretation, the express language of the statute and the rules of statutory interpretation apply. Id. We will examine the statute as a whole, and avoid excessive reliance on a strict literal meaning or the selective reading of words. Id. Where the language of the statute is clear and unambiguous, there is nothing to construe. Id. However, where the language is susceptible to more than one reasonable interpretation, the statute must be construed to give effect to the legislature's intent. Id. The legislature is presumed to have intended the language used in the statute to be applied logically and not to bring about an absurd or unjust result. Id. Thus, we must keep in mind the objective and purpose of the law as well as the effect and repercussions of such a construction. Id.
Here, Nash asks us to interpret the phrase that a "`corrections officer' includes a person employed by the department of correction" to be given the strict meaning that the person must receive his or her paycheck from the Department of Correction to fit this definition. We cannot ignore the absurd result of such an interpretation. The statute's objective is to deter persons from intentionally exposing, among others, those working at the state's correctional facilities to body waste. Nash's interpretation would distinguish between the personnel at the Department of Correction based on their employment status rather than the services they provide to the prisoners. Applying Nash's interpretation to the facts of this case, whether a prisoner is subject to prosecution under this statute is dependent on whether the facility where he or she is incarcerated directly employs its staff or obtains its personnel through a staffing agency. We do not believe that the legislature intended to distinguish Department of Correction personnel by the manner in which their services were obtained. The evidence is sufficient that Blattner was within the *1064 class of personnel intended to be protected by the legislature in her employment status with the Department of Correction.
Nash's second argument as to the sufficiency of the evidence as to whether Nash acted with the requisite intent is simply a request that we reweigh the testimony. We will not do so. In. Nash's interview with Rice, Nash admitted his action, stated that he did so knowing that he was HIV positive, and that he threw his body waste on Blattner because he felt that Blattner was not going to help him. From this, the jury could conclude that Nash knowingly or intentionally placed a body fluid or waste on a corrections officer.
II. Sentences[3]
Next, Nash avers that the trial court abused its discretion in sentencing Nash to six years imprisonment because it gave little weight to his mental illness as a mitigating circumstance.
Sentencing decisions rest within the discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind.2007). As long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion occurs when the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. (quoting KS. v. State, 849 N.E.2d 538, 544 (Ind.2006)). In Anglemyer, our Supreme Court noted a few examples of ways in which a trial court abuses its discretion:
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentenceincluding a finding of aggravating and mitigating factors if anybut the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
Id. at 490-91. However, under the new advisory statutory scheme, the relative weight or value assignable to reasons properly found, or to those that should have been found, is not subject to review for abuse of discretion. Id. at 491.
Here, Nash contends that the trial court assigned an improper weight to his mental illness as a mitigating factor. However, this is not available for appellate review.
Conclusion
In sum, there is sufficient evidence to support Nash's conviction for Battery by Body Waste, as a Class C felony. Nash's argument that the trial court did not assign enough weight to his mental illness as a mitigating circumstance is not an issue available for appellate review.
Affirmed.
NAJAM, J., and CRONE, J., concur.
NOTES
[1] Ind.Code § 35-42-2-6(e)(1).
[2] A cuff port is a little shelf in a prisoner's cell door through which inmates are handed their meal trays.
[3] Nash also makes a statement that his sentence is inappropriate. However, he does not make a separate argument supporting this contention as to how the evidence regarding the nature of the offense and the character of the offender demonstrates that his sentence is inappropriate. Accordingly; we do not review his sentence under Appellate Rule 7(B).
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JOHN TEETS,
Plaintiff - Appellant,
v. No. 18-1019
(D.C. No. 1:14-CV-02330-WJM-NYW)
GREAT-WEST LIFE & ANNUITY (D. Colo.)
INSURANCE COMPANY,
Defendant - Appellee,
------------------------------
AARP; AARP FOUNDATION;
AMERICAN COUNCIL OF LIFE
INSURERS,
Amici Curiae.
_________________________________
ORDER
_________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
This matter is before the court on the appellant’s Petition for Panel Rehearing and
Rehearing En Banc.
Upon consideration, the request for panel rehearing is denied by the original panel
members. The panel has, however, made small sua sponte clarifications to the original
opinion at pages 24 through 28. That amended version is attached to this order. The Clerk
is directed to file the clarified decision nunc pro tunc to the original filing date of March
27, 2019.
In addition, the Petition was circulated to all members of the court who are in
regular active service and who are not recused. See Fed. R. App. P. 35(a). As no member
of the original panel or the full court called for a poll, the request for en banc
reconsideration is likewise denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JOHN TEETS,
Plaintiff - Appellant,
v. No. 18-1019
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY,
Defendant - Appellee,
------------------------------
AARP; AARP FOUNDATION;
AMERICAN COUNCIL OF LIFE
INSURERS,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-02330-WJM-NYW)
_________________________________
Peter K. Stris, Stris & Maher LLP, Los Angeles, California (Rachana A. Pathak, John
Stokes, Stris & Maher LLP, Los Angeles, California; Nina Wasow, Todd F. Jackson,
Feinberg, Jackson, Worthman & Wasow LLP, Oakland, California; Todd Schneider,
Mark Johnson, James Bloom, Schneider Wallace Cottrell Konecky Wotkyns LLP,
Emeryville, California; Scot Bernstein, Law Offices of Scot D. Bernstein, P.C., Folsom,
California; Garret W. Wotkyns, Michael McKay, Schneider Wallace Cottrell Konecky
Wotkyns LLP, Scottsdale, Arizona; Erin Riley, Matthew Gerend, Keller Rohrback LLP,
Seattle, Washington; Jeffrey Lewis, Keller Rohrback LLP, Oakland, California, with him
on the brief), for the Plaintiff - Appellant.
Carter G. Phillips, Sidley Austin LLP, Washington, D.C. (Michael L. O’Donnell, Edward
C. Stewart, Wheeler Trigg O’Donnell LLP, Denver, Colorado; Joel S. Feldman, Mark B.
Blocker, Sidley Austin LLP, Chicago, Illinois, with him on the brief), for the Defendant -
Appellee.
William Alvarado Rivera, (Mary E. Signorille, AARP Foundation Litigation,
Washington, D.C. with him on the brief) for AARP and AARP Foundation Litigation,
Amici Curiae.
James F. Jorden, (Waldemar J. Pflepsen, Jr., Carlton Fields Jorden Burt, P.A.,
Washington D.C.; and Michael A. Valerio, Carlton Fields Jorden Burt, P.A., Hartford,
Connecticut with him on the brief), for American Council of Life Insurers, Amicus
Curiae.
Nancy G. Ross, Mayer Brown LLP, Chicago, Illinois, (Jed W. Glickstein, Mayer Brown
LLP, Chicago, Illinois; Brian D. Netter, Mayer Brown LLP, Washington, D.C.; Steven P.
Lehotsky, U.S. Chamber Litigation Center, Washington, D.C.; Janet M. Jacobson,
Washington, D.C., with her on the brief), for the Chamber of Commerce of the United
State of America and the American Benefits Council, Amici Curiae.
_________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Great-West Life Annuity and Insurance Company (“Great-West”) manages an
investment fund that guarantees investors will never lose their principal or the interest
they accrue. It offers the fund to employers as an investment option for their employees’
retirement savings plans, which are governed by the Employee Retirement Income
Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.
John Teets—a participant in an employer retirement plan—invested money in
Great-West’s fund. He later sued Great-West under ERISA, alleging Great-West
2
breached a fiduciary duty to participants in the fund or that Great-West was a non-
fiduciary party in interest that benefitted from prohibited transactions with his plan’s
assets.
After certifying a class of 270,000 plan participants like Mr. Teets, the district
court granted summary judgment for Great-West, holding that (1) Great-West was not a
fiduciary and (2) Mr. Teets had not adduced sufficient evidence to impose liability on
Great-West as a non-fiduciary party in interest. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. BACKGROUND
Great-West is a Colorado-based insurance company that provides “recordkeeping,
administrative, and investment services to 401(k) plans.” Aplt. App., Vol. II at 149. It
qualifies as a service provider—a “person providing services to [a] plan”—under ERISA.
See ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B).
Mr. Teets participated through his employment in the Farmer’s Rice Cooperative
401(k) Savings Plan (“the Plan”). Under the Plan, employees contribute to their own
retirement accounts and choose how to allocate their contributions among the investment
options offered. When employees invest in a particular fund, they become “participants”
in that fund. Great-West contracts with the Plan and other comparable employer plans to
offer the investment fund that is the subject of this case. Great-West is not in a
contractual relationship with participants.
3
In this section, we first provide an overview of the ERISA legal framework
governing this appeal. We then detail the factual background of the case and the
proceedings in the district court.
A. Statutory Background
ERISA Protections Against Benefit Plan Mismanagement
ERISA regulates employee benefit plans, including health insurance plans,
pension plans, and 401(k) savings plans. It is a “comprehensive and reticulated statute,
the product of a decade of congressional study of the Nation’s private employee benefit
system.” Mertens v. Hewitt Assocs., 508 U.S. 248, 251 (1993) (quotations omitted). It
governs employers that create and administer benefit plans as well as third parties that
provide services for plans. See 29 U.S.C. § 1002(1), (4), (14), (16).
ERISA seeks to protect employees against mismanagement of their benefit plans.
See Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 15 (1987) (“The focus of the
statute thus is on the administrative integrity of benefit plans.”). “[T]o ensure that
employees will not be left empty-handed,” Lockheed Corp. v. Spink, 517 U.S. 882, 887
(1996), ERISA imposes fiduciary duties on those responsible for plan management and
administration. See ERISA §§ 404, 406, 29 U.S.C. §§ 1104, 1106. “Congress
commodiously imposed fiduciary standards on persons whose actions affect the amount
of benefits retirement plan participants will receive.” John Hancock Mut. Life Ins. Co. v.
Harris Tr. & Sav. Bank, 510 U.S. 86, 96 (1993) (“Harris Trust”).
4
ERISA Fiduciaries
a. Establishing fiduciary status—named and functional fiduciaries
Under ERISA, a party involved in managing a benefit plan takes on fiduciary
obligations in one of two ways. See In re Luna, 406 F.3d 1192, 1201 (10th Cir. 2005).
First, the instrument establishing a plan must specify at least one fiduciary—typically the
employer or a trustee—that will have the “authority to control and manage the operation
and administration of the plan.” ERISA § 402(a), 29 U.S.C. § 1102(a). These are
“named fiduciaries.” See Maez v. Mountain States Tel. & Tel., Inc., 54 F.3d 1488, 1498
(10th Cir. 1995) (defining “named fiduciary”). Second, a party not named in the
instrument can nonetheless be a “functional fiduciary” by virtue of the authority the party
holds over the plan. See Santomenno v. Transamerica Life Ins. Co., 883 F.3d 833, 837
(9th Cir. 2018) (“Transamerica Life Insurance”); David P. Coldesina, D.D.S., P.C., Emp.
Profit Sharing Plan & Tr. v. Estate of Simper, 407 F.3d 1126, 1132 (10th Cir. 2005)
(“Coldesina”) (describing the “functional” approach to evaluating fiduciary status).
Under § 3(21)(A) of ERISA, 1 a party becomes a functional fiduciary when
(i) he exercises any discretionary authority or discretionary
control respecting management of such plan or exercises any
authority or control respecting management or disposition of
its assets, (ii) he renders investment advice for a fee or other
compensation, direct or indirect, with respect to any moneys
or other property of such plan, or has any authority or
responsibility to do so, or (iii) he has any discretionary
1
We refer to the relevant portions of ERISA by the section number of the Act.
ERISA is codified at 29 U.S.C. § 1001 et seq. We provide the corresponding U.S. Code
sections for ease of reference.
5
authority or discretionary responsibility in the administration
of such plan.
29 U.S.C. § 1002(21)(A) (emphasis added). 2
Functional fiduciaries’ obligations are limited in scope: “Plan management or
administration confers fiduciary status only to the extent the party exercises discretionary
authority or control.” Coldesina, 407 F.3d at 1132. And they must actually exercise their
authority or control over the plan’s assets. 3 Leimkuehler v. Am. United Life Ins. Co., 713
F.3d 905, 914 (7th Cir. 2013) (explaining that a decision not to exercise control over a
plan’s assets does not confer fiduciary status). Any alleged breach of a functional
fiduciary’s obligations must arise out of an exercise of that authority or control. See id. at
913; Assocs. in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 569 (7th
Cir. 1991).
2
Section 3(21)(A) lists three bases for a party to be a functional fiduciary.
Because Mr. Teets rests his fiduciary status argument on only the first one, Aplt. Br. at
17, we have italicized that part of the provision here.
3
ERISA § 3(21)(A) creates functional fiduciary status for those who exercise
“discretionary authority or discretionary control” in the management of a plan or who
exercise “authority or control” over plan assets. ERISA § 3(21)(A), 29 U.S.C.
§ 1002(21)(A). Although only one of these clauses uses the modifier “discretionary,” the
parties use these phrases interchangeably and do not ask us to distinguish between them.
See Aplt. Br. at 18 (stating both that “‘to the extent’ [Great-West] wields ‘any
discretionary authority or discretionary control’ over the plan or its assets, it owes
fiduciary duties” and “[t]he ‘authority or control’ inquiry is complicated in many cases”);
Aplee. Br. at 15 (“The test of Great-West’s fiduciary status is whether Great-West
exercises authority or control over a plan or plan assets . . . .”); Aplee. Br. at 31 (“Great-
West’s ‘compensation’ thus is not determined at its own discretion . . . .”). Because the
parties do not argue otherwise, we assume without deciding that the difference in these
clauses does not affect the functional fiduciary analysis in this case.
6
As the following discussion illustrates, although named fiduciaries and functional
fiduciaries obtain fiduciary status in different ways, they are bound by the same
restrictions and duties under ERISA. 4
b. Fiduciary duties and prohibited transactions
Section 404 of ERISA imposes general duties of loyalty on fiduciaries, requiring
them to “discharge [their] duties with respect to a plan solely in the interest of the
participants and beneficiaries” and “for the exclusive purpose of . . . [1] providing
benefits as to participants and their beneficiaries; and [2] defraying reasonable expenses
of administering the plan.” 29 U.S.C. § 1104(a)(1).
In addition to imposing general duties, ERISA prohibits fiduciaries from engaging
in certain specific transactions. First, it restricts transactions between plans and
fiduciaries. Under § 406(b)(1), a fiduciary may not “deal with the assets of the plan in
his own interest or for his own account.” 29 U.S.C. § 1106(b)(1). Second, ERISA
restricts transactions between fiduciaries and non-fiduciary third parties, referred to as
4
Courts occasionally also use the term “plan fiduciaries” to distinguish plan-
affiliated fiduciaries (typically named fiduciaries) from fiduciaries that are third parties.
See, e.g., Hecker v. Deere & Co., 556 F.3d 575, 586 (“We see nothing in the statute that
requires plan fiduciaries to include any particular mix of investment vehicles in their
plan.”); Zang and Others Similarly Situated v. Paychex, Inc., 728 F. Supp. 2d 261, 271
(W.D.N.Y. 2010) (explaining that a service provider is not a functional fiduciary if “the
appropriate plan fiduciary in fact makes the decision to accept or reject the change”
(quoting Dept. of Labor Advisory Op. 97-16A, 1997 WL 277979, at *5 (May 22, 1997))).
The term “plan fiduciary,” however, can be somewhat misleading. Third parties, such as
service providers, that qualify as functional fiduciaries are also fiduciaries of a plan, and
the relevant ERISA provisions use “fiduciary” as a catch-all term that does not
distinguish between named fiduciaries and functional fiduciaries. See, e.g., ERISA
§ 404(a), 29 U.S.C. § 1104(a).
7
“parties in interest.” The latter can include service providers. See ERISA § 3(14)(B),
29 U.S.C. § 1002(14)(B). Under § 406(a), a fiduciary may not allow a plan to engage in
a transaction the fiduciary knows or should know is (1) a “sale or exchange, or leasing, of
any property between the plan and a party in interest”; (2) “lending of money or other
extension of credit between the plan and a party in interest”; (3) “furnishing of goods,
services, or facilities between the plan and a party in interest”; (4) “transfer to, use by or
for the benefit of, a party in interest, of any assets of the plan”; or (5) “acquisition, on
behalf of the plan, of any employer security or employer real property in violation of
[§] 1107(a).” 29 U.S.C. § 1106(a)(1)(A)-(E).
If a fiduciary engages in one of these prohibited transactions under § 406,
ERISA’s civil enforcement provision, § 502, allows plan participants to sue the fiduciary
“to enjoin any act or practice which violates any provision of this subchapter or the terms
of the plan” or “to obtain other appropriate equitable relief.” ERISA § 502(a)(3), 29
U.S.C. § 1132(a)(3). Fiduciaries can avoid liability for a prohibited transaction if they
qualify for certain exemptions under § 408 of ERISA.
ERISA Non-Fiduciary Parties in Interest and Prohibited Transactions
Although parties in interest have no fiduciary obligations to a plan or its
participants, the Supreme Court has read § 502(a)(3) to allow a suit against a party in
interest for its participation in a prohibited transaction. Harris Tr. & Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 241 (2000) (“Salomon”) (“[Section] 502(a)(3)
admits of no limit . . . on the universe of possible defendants.”). A party in interest is
liable if it “had actual or constructive knowledge of the circumstances that rendered the
8
transaction unlawful”—that is, prohibited under § 406(a). Id. at 251. We discuss this
standard in detail below.
B. Factual Background
The Key Guaranteed Portfolio Fund
a. Overview
Great-West offers an investment product called the Key Guaranteed Portfolio
Fund (“KGPF”). The KGPF is a stable-value fund. It “guarantees capital preservation.”
Aplt. App., Vol. II at 150. This means KGPF participants will never lose the principal
they invest or the interest they earn, which is credited daily to their accounts. Id. The
KGPF was one of 29 investment options the Farmer’s Rice Cooperative Plan’s fiduciaries
chose to offer participants like Mr. Teets.
b. Great-West’s management of the KGPF and the Credited Interest Rate
Great-West deposits the money that participants have invested in the KGPF into
its general account. That account, in turn, is invested in fixed-income instruments such
as treasury bonds, corporate bonds, and mortgage-backed securities. Great-West
employs a self-described “conservative investment strategy.” Id. at 157, 173. Its
investments earn lower interest rates than some higher-risk instruments or funds.
Money invested in the KGPF earns interest at the “Credited Interest Rate” (the
“Credited Rate”). Under the contracts it executes with employer plans, Great-West sets
the Credited Rate quarterly, announcing the new rate at least two business days before the
start of each quarter. Its contract with Mr. Teets’s Plan provides, “Interest earned on the
Key Guaranteed Portfolio Fund value is compounded daily to the effective annual interest
9
rate. The interest rate to be credited to the Group Contractholder [the Plan] will be
determined by [Great-West] prior to the last day of the previous calendar quarter.” Aplt.
App., Vol. I at 129. “The effective annual interest rate will never be less than 0%.” Id.
Great-West retains as revenue the difference between the total yield on the
KGPF’s monetary instruments and the Credited Rate, also known as the “margin” or the
“spread.” Some portion of the margin goes toward Great-West’s operating costs. Great-
West publicly discloses an administrative fee of .89 percent, but claims that figure does
not capture all the costs associated with maintaining the KGPF. Great-West retains as
profit whatever portion of the margin exceeds its costs. The parties dispute the total
KGPF-associated profit Great-West has earned, but all agree that as of 2016 it was
greater than $120 million.
The Credited Rate dropped from 3.55 percent before the financial crisis in 2008 to
1.10 percent in 2016. During that time, the Credited Rate increased only once, in 2013.
At the same time, Great-West’s margin remained relatively constant, between
approximately two and three percent. 5
c. Exiting the KGPF
Plans may terminate their relationship with Great-West based on changes to the
Credited Rate. If they do, Great-West “reserves the right to defer payment” of
participants’ KGPF money back to the plan—presumably to reinvest with another
This figure is drawn from a report Mr. Teets’s expert prepared at the summary
5
judgment stage. Great-West does not disclose its margins as a matter of course.
10
provider—“not longer than 12 months.” 6 Id. There is no evidence Great-West has ever
exercised the option to impose that waiting period.
Participants who have placed their money in the KGPF may withdraw their
principal and accrued interest at any time without paying a fee. Great-West does,
however, prohibit plans offering the KGPF from also offering any other stable value
funds, money market funds, or certain bond funds—in other words, products with
comparable risk profiles. 7
C. Procedural Background
Mr. Teets sued Great-West in the United States District Court for the District of
Colorado on behalf of all employee benefit plan participants who had invested in the
KGPF since 2008, as well as those participants’ beneficiaries. The district court certified
the class under Federal Rule of Civil Procedure 23(b)(3). See Teets v. Great-West Life &
Annuity Ins. Co., 315 F.R.D. 362, 374 (D. Colo. 2016). At certification, the class
included approximately 270,000 KGPF participants spread across more than 13,000
6
The KGPF is offered to participants in defined contribution retirement plans. In
such plans, either the employee participant or the employer (or both) contribute funds to a
participant’s retirement account. See Edward A. Zelinsky, The Defined Contribution
Paradigm, 114 Yale L.J. 451, 456 (2004). In a 401(k) plan, one type of defined
contribution plan, participants typically allocate the funds in their own accounts. Id. at
484. It is thus not clear that the Plan in this case invested any of its own funds into the
KGPF. But according to the Plan contract, if the Plan terminates its relationship with
Great-West and stops offering the KGPF, the Plan can opt to have the total of the
participants’ accounts paid to it, presumably for reinvestment in another fund.
7
Our review of the record supports this statement, and counsel for Great-West
admitted as much at oral argument. Oral Arg. at 28:30-28:55.
11
plans. 8 Id. at 369. None of the plans’ named fiduciaries is a named plaintiff or a member
of the class.
1. Mr. Teets’s ERISA Claims
Mr. Teets alleged three ERISA violations. His first two claims alleged Great-West
had violated ERISA’s fiduciary duty provisions. First, Mr. Teets claimed that Great-
West had breached its general duty of loyalty under § 404 by (1) setting the Credited Rate
for its own benefit rather than for the plans’ and participants’ benefit, (2) setting the
Credited Rate artificially low and retaining the difference as profit, and (3) charging
excessive fees. Second, he claimed that Great-West, again acting in its fiduciary
capacity, had engaged in a prohibited transaction under § 406(b) by “deal[ing] with the
assets of the plan in [its] own interest or for [its] own account.” 29 U.S.C. § 1106(b).
As a prerequisite to bring both of these claims, Mr. Teets alleged that Great-West
is an ERISA fiduciary because it exercises authority or control over the quarterly
Credited Rate and, by extension, controls its compensation. The district court limited its
review of these two fiduciary duty claims by addressing only this prerequisite—that is,
whether Mr. Teets had sufficiently established Great-West’s fiduciary status. Because
the court found that Great-West was not a fiduciary, it did not address whether Great-
West had breached any fiduciary obligations. Great-West’s fiduciary status is thus the
focus of our review of Mr. Teets’s fiduciary duty claims.
8
The class period runs “until the time of trial.” Teets, 315 F.R.D. at 374.
12
Mr. Teets’s third claim, raised in the alternative, was based on Great-West’s
having non-fiduciary status. He alleged that Great-West was a non-fiduciary party in
interest to a non-exempt prohibited transaction under § 406(a) insofar as it had used plan
assets for its own benefit.
On all three claims, Mr. Teets sought declaratory and injunctive relief and “other
appropriate equitable relief,” including restitution and an accounting for profits. Aplt.
App., Vol. I at 37.
2. Summary Judgment Ruling
After discovery, the parties filed cross-motions for summary judgment. The
district court denied Mr. Teets’s motion and granted summary judgment for Great-West.
It disposed of Mr. Teets’s first two claims at the same time, concluding that Great-West
was not acting as a fiduciary of the Plan or its participants. It held that Great-West’s
contractual power to choose the Credited Rate did not render it a fiduciary under ERISA
because participants could “veto” the chosen rate by withdrawing their money from the
KGPF. Id. at 99. As to Great-West’s ability to set its own compensation, the court held
that Great-West did not have control over its compensation and thus was not a fiduciary
because the ultimate amount it earned depended on participants’ electing to keep their
money in the KGPF each quarter. 9
9
Having concluded Great-West was not an ERISA fiduciary, the district court did
not address whether, if it were a fiduciary, its conduct would amount to a breach of its
duties.
13
The district court also granted summary judgment on Mr. Teets’s third claim,
concluding that Great-West was not liable as a non-fiduciary party in interest because Mr.
Teets had failed to establish a genuine dispute as to whether Great-West had “actual or
constructive knowledge of the circumstances that rendered the transaction unlawful.” Id.
at 105 (quoting Salomon, 530 U.S. at 251). Mr. Teets timely appealed.
Our review thus focuses on (1) whether Great-West is a functional fiduciary
because it “exercises . . . authority or control” over Plan assets, ERISA § 3(21)(A), 29
U.S.C. § 1002(21)(A), when its sets the Credited Rate or its compensation; and (2)
whether, if Great-West is not a fiduciary, it is liable as a non-fiduciary party in interest
for its participation in a transaction prohibited under ERISA.
We will add further factual and procedural background as it becomes relevant.
D. Summary Judgment Background
“We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Coldesina, 407 F.3d at 1131. “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We view the evidence
and draw reasonable inferences in the light most favorable to the nonmoving party.
Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005).
“The movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of
law.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing
14
Celotex, 477 U.S. at 323). A movant that does not bear the burden of persuasion at trial
may satisfy this burden “by pointing out to the court a lack of evidence on an essential
element of the nonmovant’s claim.” Id. (citing Celotex, 477 U.S. at 325).
“If the movant meets this initial burden, the burden then shifts to the nonmovant to
set forth specific facts from which a rational trier of fact could find for the nonmovant.”
Id. (quotations omitted). To satisfy this burden, the nonmovant must identify facts “by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Id. (citation omitted). These facts “must establish, at a minimum, an inference of the
presence of each element essential to the case.” Bausman v. Interstate Brands Corp., 252
F.3d 1111, 1115 (10th Cir. 2001).
“Where, as here, we are presented with cross-motions for summary judgment, we
must view each motion separately, in the light most favorable to the non-moving party,
and draw all reasonable inferences in that party’s favor.” United States v. Supreme Ct. of
N.M., 839 F.3d 888, 906-07 (10th Cir. 2016) (quotations omitted).
II. DISCUSSION
Mr. Teets argues that (A) Great-West is a fiduciary because it has the authority to
set the Credited Rate each quarter and, by extension, to determine its own compensation;
and (B) even if Great-West is not a fiduciary, it is nonetheless liable as a party in interest
because it benefitted from a transaction prohibited under ERISA.
A. Fiduciary Duty Claims—Great-West’s Fiduciary Status
The threshold question for the two fiduciary duty claims is whether Great-West is
a functional fiduciary under ERISA. Mr. Teets argues it is because Great-West exercises
15
“authority or control” over the Plan or its assets by changing the Credited Rate without
plan or participant approval. Aplt. Br. at 17-19, 25-26. He also contends Great-West has
sufficient control over its own compensation to render it an ERISA fiduciary. We
conclude that Mr. Teets did not make an adequate showing in response to Great-West’s
summary judgment motion to support these points.
The following discussion describes the pertinent legal background, summarizes
the district court’s ruling, and analyzes the evidence of Great-West’s authority in relation
to plans and participants.
Legal Background
As noted above, a service provider can be a functional fiduciary under § 3(21)(A)
of ERISA when it exercises authority or control over plan management or plan assets.
See 29 U.S.C. § 1002(21)(A). Courts consider an employee benefit plan contract—like
the one between Mr. Teets’s Plan and Great-West—to be an asset of the plan, such that a
service provider’s authority or control over the plan contract can give rise to fiduciary
status. See Chicago Bd. Options Exch., Inc. v. Conn. Gen. Life Ins. Co., 713 F.2d 254,
260 (7th Cir. 1983) (“CBOE”) (“[T]he policy itself is a plan asset.”); accord ERISA
§ 401(b)(2), 29 U.S.C. § 1101(b)(2) (providing that a contract for a guaranteed-benefit
policy is an asset of the plan to which it is issued).
The case law points to a two-step analysis to determine whether a service provider
is a functional fiduciary when a plaintiff alleges it has acted to violate a fiduciary duty. 10
10
This court has not decided any cases to determine whether a service provider
exercised discretionary authority or control beyond the terms of a negotiated contract.
16
First, courts decide whether the service provider’s alleged action conformed to a specific
term of its contract with the employer plan. By following the terms of an arm’s-length
negotiation, the service provider does not act as a fiduciary. See, e.g., Schulist v. Blue
Cross of Iowa, 717 F.2d 1127, 1132 (7th Cir. 1983) (holding service provider was not
fiduciary where its compensation was established through successive negotiations).
Second, if the service provider took unilateral action beyond the specific terms of the
contract respecting the management of a plan or its assets, 11 the service provider is a
fiduciary unless the plan or perhaps the participants in the plan (see below) have the
unimpeded ability to reject the service provider’s action or terminate the relationship with
the service provider. See, e.g., Midwest Cmty. Health Serv., Inc. v. Am. United Life Ins.
Co., 255 F.3d 374, 377-78 (7th Cir. 2001) (holding service provider was fiduciary when
it could make changes to plan contract without plan approval and would assess a fee for
plans withdrawing funds).
Thus, to establish a service provider’s fiduciary status, an ERISA plaintiff must
show the service provider (1) did not merely follow a specific contractual term set in an
Accordingly, we must look outside the Tenth Circuit for guidance. Although our review
includes cases dealing with pension and insurance plans in addition to 401(k) plans like
Mr. Teets’s, the lessons we draw from these cases about functional fiduciary status apply
to the various types of benefit plans subject to ERISA regulation.
11
Ministerial tasks alone do not qualify a service provider for fiduciary status. See
Olson v. E.F. Hutton & Co., 957 F.2d 622, 625 n.3 (8th Cir. 1992) (“It is well established
that one who performs only ministerial tasks is not cloaked with fiduciary status.”); see
also 29 C.F.R. § 2509.75-8 (2018) (listing examples of ministerial actions that do not
qualify as “discretionary authority or discretionary control respecting management of [a]
plan”).
17
arm’s-length negotiation; and (2) took a unilateral action respecting plan management or
assets without the plan or its participants having an opportunity to reject its decision.
a. Arm’s-length negotiation of contract terms
When a service provider adheres to a specific contract term that is the product of
arm’s-length negotiation, courts have held that the service provider is not a fiduciary.
Schulist provides a useful example. 717 F.2d at 1132. In Schulist, a service provider
won a contract to administer an employer’s health care plan by submitting the winning
bid—the lowest premium price—in a competitive bidding process. Id. at 1129. During
the first year of operating under the contract, premium payments resulted in a large
surplus. Id. The parties agreed to a lower premium for the second year, but the surplus
returned. In the third year, the parties negotiated a new contract whereby any surplus
would be returned to the plan. Id. The employer’s trustees sued the service provider for
breach of contract and breach of fiduciary duty. Id. at 1130. The Seventh Circuit
concluded that the service provider was not a fiduciary because, during the initial auction
and at every subsequent renewal, “[the insurer] entered into an arm’s length bargain
presumably governed by competition in the marketplace.” Id. at 1132.
A service provider similarly does not owe a fiduciary duty regarding its
compensation when compensation is fixed during an arm’s-length negotiation. In
Transamerica Life Insurance, for example, the Ninth Circuit held that the manager of an
employee retirement plan was not an ERISA fiduciary as to its compensation because the
plan contract set the manager’s compensation at a fixed percentage of the plan’s assets,
and it also provided a specific schedule for fees the manager could collect. 883 F.3d at
18
836; see also F.H. Krear & Co. v. Nineteen Named Trs., 810 F.2d 1250, 1254-55, 1259
(2d Cir. 1987) (holding service provider was not a fiduciary when the contract that
defined the amount of its compensation was the product of an arm’s-length negotiation).
b. Unilateral decisions regarding plan or asset management
When a service provider acts with authority or control beyond the contract’s
specific terms, the service provider may be a fiduciary. And when the plan or the plan
participants cannot reject the service provider’s action or terminate the contract without
interference or penalty, the service provider is a functional fiduciary. See, e.g., Charters
v. John Hancock Life Ins. Co., 583 F. Supp. 2d 189, 199 (D. Mass. 2008) (holding service
provider was fiduciary where plan attempting to terminate contract faced “built-in”
monetary penalties). Fiduciary status turns on whether the service provider can force
plans or participants to accept its choices about plan management or assets. See, e.g.,
CBOE, 713 F.2d at 260 (finding fiduciary status where service provider “determined
what type of investment the Plan must make”). The cases discussed in this section
address whether plans faced impediments to rejecting service providers’ actions.
In some cases, the service provider’s unilateral decision changes a term of the plan
contract. For example, in CBOE, a service provider provided investment services for an
employee retirement benefit plan. Id. at 255-56. Under the contract, contributions made
on behalf of each plan participant were deposited into an individual account. Id. at 256.
The service provider announced that it was going to restructure the investment options it
provided to the plan by creating a new account for each participant and annually
transferring 10 percent of the balance from the participant’s original account to the new
19
one, which was supposed to yield a higher rate of return. Id. This “unilateral”
restructuring effectively amended the original terms of the contract. Id. If the plan
disagreed with this approach and sought to terminate the contract and withdraw its
participants’ funds to reinvest them elsewhere, the service provider could limit the plan’s
withdrawal of funds to 10 percent of the total balance per year, effectively requiring 10
years to withdraw all of the funds. Id. The Seventh Circuit held that this restriction
“lock[ed] [the plan] in” and made the service provider a functional fiduciary. Id. at 260.
In other cases, the contract may “grant[] [a service provider] discretionary
authority” over an aspect of plan or asset management. Ed Miniat, Inc. v. Globe Life Ins.
Grp., Inc., 805 F.2d 732, 737 (7th Cir. 1986). In those cases, too, the service provider’s
discretionary decision making—though authorized by contract—is “cabined by ERISA’s
fiduciary duties” unless plans or participants can freely reject the service provider’s
choices or terminate the contract. Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406,
422 (3d Cir. 2013). For example, in Ed Miniat, the service provider contracted with an
employer to provide investment services for an employee insurance plan. Under the plan
contract, the employer paid premiums to make life insurance available to employees upon
their retirement. See 805 F.2d at 733-34. The service provider had the “apparent
unilateral right to reduce the rate of return” it paid on the employer’s contributions. Id. at
734. Before it issued any insurance under the plan, the service provider reduced the rate
of return from 10 percent to 4 percent (the lowest value allowed by the contract) and
increased premiums. Id. When the employer sought to terminate the contract, the service
provider refused to reimburse half of the premiums the employer had paid. The Seventh
20
Circuit held the service provider was a fiduciary, reasoning that it had the power to
unilaterally amend the contract. Id. at 738. 12
In contrast to the foregoing cases holding a service provider to be a fiduciary,
when plans and participants have a “meaningful opportunity” to reject a service
provider’s unilateral decision, courts have held the service provider is not a fiduciary.
Charters, 583 F. Supp. 2d at 199. For example, in Hecker v. Deere & Co., 556 F.3d 575
(7th Cir. 2009), the Seventh Circuit declined to impose fiduciary duties on a fund
manager that was retained to advise a plan on which investment options to include in the
plan. Id. at 578, 584. It reasoned that the plan contract gave the plan, not the fund
manager, “final say on which investment options [would] be included.” Id. at 583; see
Santomenno ex rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 295
(3d Cir. 2014) (“John Hancock”) (holding no fiduciary relationship arose from service
provider providing suggested list of funds where “trustees still exercised final authority
over what funds would be included”).
In Zang and Others Similarly Situated v. Paychex, Inc., the employee benefit plan
selected mutual funds to offer its participants from a list composed by a service provider.
12
See also Midwest Cmty. Health Serv., Inc., 255 F.3d at 377 (holding that service
provider was a fiduciary when it reserved the right to change terms without plan or
participant approval and would assess a fee upon withdrawal of funds); Charters, 583 F.
Supp. 2d at 198-99 (recognizing fiduciary duty where employee benefit plan sponsor
faced “built-in penalties” for transferring assets to a different account or cancelling its
contract if it was dissatisfied with how service provider exercised its contractual right to
substitute investment options); Rosen v. Prudential Ret. Ins. & Annuity Co., 718 F. App’x
3, 5 (2d Cir. 2017) (“[F]iduciary status attaches to the party empowered to make
unilateral changes to the investment menu by its contractual arrangement with the plan.”).
21
728 F. Supp. 2d 261, 263 (W.D.N.Y. 2010). The service provider “reserve[d] the right to
modify” the list of mutual funds the plan selected. Id. The contract required at least 60
days’ notice of a proposed modification and an opportunity for the plan to reject the
change or terminate the contract. Id. at 263-64. The court held that the service
provider’s ability to amend the list of available mutual funds did not give rise to fiduciary
status because the contract gave the plan the ultimate say over whether the change would
take effect. Id. at 271 n.6 (“Paychex could not force the employer to accept any
particular deletion or substitution.”).
The foregoing analysis applies to determining whether a service provider’s control
over its own compensation may make it a fiduciary. A contract might give a service
provider “control over factors that determine the actual amount of its compensation.”
Krear, 810 F.2d at 1259. If the service provider exercises unilateral control over those
factors, it can be a fiduciary. In Pipefitters Local 636 Insurance Fund v. Blue Cross and
Blue Shield of Michigan, the Sixth Circuit held an insurer was a fiduciary as to its
compensation. 722 F.3d 861 (6th Cir. 2013). State law required the service provider to
pay one percent of its total income to the state, and its contract with the plan entitled it to
pass along that cost to the plan. Id. at 864 (detailing provision allowing “any cost transfer
subsidies or surcharges ordered by the State Insurance Commissioner . . . [to] be reflected
in the . . . Amounts Billed”). But “the state did not fix the rate that Defendant charged
each customer, and crucially, neither did the [contract] between Plaintiff and Defendant.”
Id. at 867 (emphasis added). Because the contract “in no way cabin[ed] [the provider’s]
22
discretion” to decide how much of the fee to collect from each plan, the court held the
service provider was an ERISA fiduciary. Id. 13
District Court Ruling
The district court evaluated whether Great-West is a fiduciary based upon its
changes to the Credited Rate and control over its compensation.
a. Change to the Credited Rate
The district court held that Great-West is not a fiduciary when it sets the Credited
Rate. It acknowledged that “in some sense,” Great-West “undoubtedly” exercises some
control when it sets the Credited Rate. Aplt. App., Vol. I at 92. But the court recognized
“a number of cases favoring the theory that a pre-announced rate of return prevents
fiduciary status from attaching to the decision regarding the what [sic] rate to set, at least
when the plan and/or its participants can ‘vote with their feet’ if they dislike the new
rate.” Id. “Thus,” the court stated, “if the all the [sic] circumstances of the alleged
ERISA-triggering decision show that the defendant does not have power to force its
decision upon an unwilling objector, the defendant is not acting as an ERISA fiduciary
13
See also Abraha v. Colonial Parking, Inc., 243 F. Supp. 3d 179, 186 (D.D.C.
2017) (exercise of contractual authority to change from a flat per-participant fee to a
percentage-of-contributions fee was an exercise of discretion over service provider’s own
compensation and therefore subject to ERISA fiduciary obligations); Golden Star, Inc. v.
Mass Mut. Life Ins. Co., 22 F. Supp. 3d 72, 80-82 (D. Mass. 2014) (insurer had discretion
to set a “management fee” anywhere between zero and one percent and therefore was a
fiduciary); Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan &
Tr. v. State St. Bank & Tr. Co., 931 F. Supp. 2d 296, 304 (D. Mass. 2013) (bank had
discretionary authority to set a “lending fee” anywhere from zero to 50 percent and was
therefore a fiduciary).
23
with respect to that decision.” Id. at 98. The court discussed this issue separately as it
concerned plans and participants.
First, as to Great-West’s ability to bind plans to its Credited Rate decisions, the
district court rejected Mr. Teets’s argument that plans cannot readily withdraw from the
KGPF because Great-West has a right to impose a waiting period of up to one year. The
court stated, “This is not an argument that the Court can consider in the present posture.
The Contract does not mandate a one-year waiting period, so whether it would actually
be imposed in any particular instance is speculative.” Id. at 99.
Second, as to individual participants’ ability to reject the Credited Rate, the district
court concluded that participants do have a “real ability” to reject Great-West’s choice of
the Credited Rate by withdrawing their funds from the KGPF without fee or penalty. Id.
Although it had “given serious thought to” the argument that participants cannot easily
withdraw from the KGPF because Great-West prohibits plans from offering other
comparable investment products, the court concluded that imposing a fiduciary duty on
that basis would “introduce[] a host of other considerations individual to each
participant.” Id. As a result, it would be “too attenuated” to say that a given participant
could not reject the Credited Rate each quarter. Id.
b. Control over compensation
The district court also concluded Great-West is not a fiduciary as to setting its
compensation. Although it acknowledged that a service provider’s control over
compensation factors can give rise to fiduciary obligations, the court said this principle
“has only been applied in cases where the alleged fiduciary has some form of direct
24
contractual authority to establish its fees and other administrative charges, or has
authority to approve or disapprove the transactions from which it collects a fee.” Id. at
100.
The court also reasoned that Great-West does not have control over its
compensation because, even though it could use the Credited Rate to “influence its
possible margins,” the ultimate amount it earns depends on whether participants elect to
keep their money in the KGPF each quarter. Id. at 101.
Analysis
Mr. Teets argues that Great-West’s ability to set the Credited Rate renders it an
ERISA fiduciary because neither the Plan nor its participants can reject changes to the
Credited Rate. 14 He focuses on Great-West’s (1) contractual right to impose a 12-month
waiting period on withdrawing plans and (2) prohibition on plans’ offering comparable
investment options to participants. We conclude that Mr. Teets has not adduced
sufficient evidence to create an issue of material fact as to whether either of the foregoing
has prevented plans or participants from rejecting a change in the Credited Rate.
14
The parties do not dispute that changing the Credited Rate is the kind of
decision that might qualify Great-West for fiduciary status. Changing the rate of return
on participants’ investments cannot fairly be considered “ministerial” in the same way
that calculating benefits or maintaining records can. See In re Luna, 406 F.3d at 1205
(holding that an employer’s duty to make plan contributions pursuant to collective
bargaining agreement was ministerial); 29 C.F.R. § 2509.75-8 (listing examples of
ministerial functions). On the contrary, it is exactly the kind of action that would “affect
the amount of benefits retirement plan participants will receive.” Harris Tr., 510 U.S. at
96.
25
Mr. Teets separately argues that Great-West’s control over the Credited Rate gives
it control over its compensation and thereby renders it an ERISA fiduciary. We conclude
that because Great-West does not have unilateral authority or control over the Credited
Rate, it also lacks such control over its compensation. We therefore affirm the district
court’s summary judgment ruling that Great-West is not a functional fiduciary.
a. Change to the Credited Rate
The contract between the Plan and Great-West does not set a Credited Rate or
prescribe a Credited Rate formula. Instead, it authorizes Great-West to set the Credited
Rate on a quarterly basis without input from the Plan or its participants. Accordingly, the
Credited Rate is not the product of an arm’s-length negotiation, and Great-West’s
fiduciary status therefore depends on whether the Plan or its participants can reject a
change in the Credited Rate. To make that determination, we address Great-West’s (1)
right to impose a 12-month waiting period on departing plans and (2) prohibition on plans
offering comparable investment options to their participants.
i. Potential 12-month waiting period for withdrawing plans
As discussed above, a service provider’s unilateral decision regarding
management of a plan or its assets can give rise to functional fiduciary status if the
service provider can prevent or penalize plans for withdrawing funds from the service
provider or terminating the contract. See, e.g., CBOE, 713 F.2d at 260; Charters, 583 F.
Supp. 2d at 199. When Great-West changes the Credited Rate, its contractual option to
delay a plan’s ability to receive funds from the KGPF upon termination of the contract, if
exercised, may make it a fiduciary.
26
Mr. Teets contends that Great-West, like service providers held to be fiduciaries in
CBOE, Ed Miniat, and Midwest Community Health, has “unhampered discretion” under
ERISA because it has “the ability”—even if never used—“to force plans to accept the
Credited Rate for up to a year.” Aplt. Reply Br. at 7 (quotations omitted); see Aplt. Br. at
21-23.
Great-West argues that its contractual option to delay the return of a departing
plan’s funds does not establish fiduciary status. Aplee. Br. at 29. It relies on ERISA’s
text, which confers fiduciary status on a service provider only to the extent it “exercises
any discretionary authority or discretionary control” over a plan or its assets. ERISA
§ 3(21)(A), 29 U.S.C. § 1002(21)(A); see also Leimkuehler, 713 F.3d at 911 (declining to
recognize fiduciary status where service provider “reserve[d] the right to make
substitutions to the funds” but “ha[d] never exercised this contractual right in a way that
could give rise to a claim”).
We agree with Great-West that its contractual option to impose a 12-month
waiting period on plan withdrawal is different from the penalties and fees that gave rise
to fiduciary status in the cases cited by Mr. Teets. In those cases, the penalties either had
been or were certain to be enforced on the plans. See, e.g., Ed Miniat, 805 F.2d at 734
(service provider actually “deducted ‘front end load’ charges” upon contract
cancellation); Midwest Cmty. Health Serv., Inc., 255 F.3d at 375 (service provider “would
assess a withdrawal or ‘surrender charge’ and make an ‘investment liquidation
adjustment’” upon withdrawal); Charters, 583 F. Supp. 2d at 191 (plan was “subject to
administrative charges” and “termination fees” upon cancellation or transfer of funds). In
27
other words, the service providers’ rights to impose penalties in those cases had been or
were certain to be “exercised.” See ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A). But in
this case, a plan’s attempt to terminate its KGPF contract in response to a change in the
Credited Rate does not trigger the waiting period. Great-West must exercise its option to
impose it.
We are not aware of any case finding fiduciary status under § 3(21)(A) of ERISA
based on a service provider’s unexercised contractual option to restrict or penalize
withdrawal. But even if a potential restriction or penalty could make Great-West a
fiduciary, it cannot do so in this case. This is so because Mr. Teets not only has provided
no evidence that Great-West has ever imposed the waiting period on a plan’s withdrawal,
he has provided no evidence that even the potential of Great-West’s imposing a waiting
period has affected any plan’s choice to continue with or withdraw from the KGPF
contract. More than 3,000 plans have terminated the KGPF as a plan offering during the
class period. Mr. Teets has not provided a single example showing the potential waiting
period has deterred any of the 13,000 plans represented by participants in the class from
withdrawing from the KGPF. Unlike in CBOE, there is no evidence a plan has actually
been or is likely to be locked in to a Credited Rate for up to 12 months. See 713 F.2d at
260. Without any evidence that Great-West has exercised its right or that the right has
deterred any plan from exiting the KGPF, summary judgment in favor of Great-West on
this issue was appropriate. 15
15
In his opposition to Great-West’s motion for summary judgment, Mr. Teets
raised other penalties Great-West imposes on a departing plan. For example, he stated:
28
ii. Prohibition on comparable investment options for participants
We next turn to whether plan participants—the class members in this case—can
reject the quarterly Credited Rate by withdrawing from the KGPF. When Great-West
moved for summary judgment contesting fiduciary status, it argued that “[t]he evidence
shows that” when it changes the Credited Rate, “participants, not Great-West, have the
‘final say’ on whether any Credited Interest Rate will apply to their investments in the
[KGPF].” Aplt. App., Vol. II at 176. Great-West contended that this was so because
participants who have invested in the KGPF “can reject any new Credited Interest Rate
by transferring their accounts out of the [KGPF] at any point, without penalty.” Id.; see
also id. at 151, 282-83. 16 In response, Mr. Teets made two arguments, both unavailing.
The default “cessation option” under [Great-West’s
contract with the Plan] is the “participant maintenance
option,” in which Great-West continues to hold participants’
money in the KGPF until it is all transferred or distributed by
the participants. . . . Further, the Contract provides for a
“Contract Termination Charge” if the Contract is terminated
before Great-West’s recovery of all Start-Up Costs.
Aplt. App., Vol. II at 283. But Mr. Teets did not raise this argument on appeal until his
rebuttal at oral argument. Oral Arg. at 38:20-39:27. It is therefore waived. See United
States v. Dahda, 852 F.3d 1282, 1292 n.7 (10th Cir. 2017) (“[I]ssues raised for the first
time at oral argument are considered waived.” (quotations omitted)), aff’d, 138 S. Ct.
1491 (2018).
16
To support its argument, Great-West pointed to paragraph 15 of its statement of
material facts, which asserted, in part, “Participants who allocate money to the [KGPF]
can withdraw that money, both principal and any accrued earnings, at any time—even
prior to the expiration of the 90-day guarantee period—without paying any fee or
incurring any penalty.” Aplt. App., Vol. II at 151. Paragraph 15, in turn, cited to the
contract between the Plan and Great-West, which states that “[a]mounts may be
transferred from the Participant’s account balance in the Key Guaranteed Portfolio Fund
29
First, he disagreed that Great-West’s fiduciary status may turn on whether
participants can freely withdraw from the KGPF. 17 He repeats this contention on appeal:
“participants’ ability to ‘accept’ or ‘reject’ Great-West’s Credited Rate decision is legally
irrelevant.” Aplt. Reply Br. at 9. It is not clear to us why Mr. Teets would take this
position, but if this were his only argument and we have understood it properly, he would
have effectively conceded that participants’ ability to leave the KGPF, impeded or
unimpeded, has no effect on whether Great-West is a fiduciary.
Second, Mr. Teets argued, alternatively, in his opposition to summary judgment,
that Great-West is a fiduciary because “Great-West precludes plans from offering
alternative low-risk investments alongside the KGPF” and therefore participants are not
free to leave. Aplt. App., Vol. II at 301. He noted that when his Plan contracted with
Great-West, it agreed that no stable value fund—effectively, no fund with a similar risk
at any time,” Aplt. App., Vol. I at 129, and to other evidence allegedly establishing that
participants’ withdrawals from the KGPF were “unrestricted.” Aplt. App., Vol. II at 151.
Unlike the concurrence, we think this was enough for Great-West, the “party
seeking summary judgment,” to “inform[] the district court” of why “it believe[d]” there
was an “absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). As described below, Mr. Teets, after being put on notice that he needed
to “present evidence opposing the argument[]” that participants could freely leave the
KGPF, see Bonney v. Wilson, 817 F.3d 703, 710 (10th Cir. 2016), responded only by
pointing to Great-West’s policy against competing funds without showing that it
restricted withdrawal.
17
Mr. Teets asserted, “Great-West does not cite a single case supporting its
contention that a service provider to an individual account defined contribution plan can
avoid fiduciary status merely because participants have the ability to invest in or divest
from the product offered by the service provider, and Plaintiff is aware of no such case.”
Aplt. App., Vol. II at 299-300.
30
profile—would be offered that is comparable to the KGPF. Id. at 292-93, 301. As a
result, “participants who divest from the KGPF in response to a change in Credited Rate
are forced to alter the risk profile of their retirement accounts.” Id. at 301. It follows, he
asserted, that Great-West is a fiduciary as to setting the Credited Rate. See id.
Mr. Teets’s opposition to summary judgment on this alternative ground lacked
supporting law or facts. He has not cited, and we have not found, a case in which a court
has deemed a service provider to be a fiduciary based on participants’ lack of alternative
investment options, or on anything other than imposing a penalty or fee for withdrawal.
Moreover, Mr. Teets has not cited, and we have not found, a case finding fiduciary status
based solely on restrictions on participants’ ability to leave a fund. 18
Even if the ability of participants to reject service provider actions is relevant to
the fiduciary status, Mr. Teets failed to provide factual support to counter Great-West’s
assertion in district court that participants can freely transfer their money out of the
KGPF. See id. at 176. He pointed only to Great-West’s policy against competing funds.
18
Although service providers in the life insurance context have been held to be
ERISA fiduciaries in their dealings with beneficiaries—as opposed to plans—these cases
do not help Mr. Teets. Vander Luitgaren v. Sun Life Assurance Co. of Canada, 966 F.
Supp. 2d 59 (D. Mass 2012), provides a useful illustration. In that case, a service
provider administering a life insurance policy was held to be an ERISA fiduciary when it
paid benefits to a plaintiff beneficiary using a retained-asset account and had unilateral
control over the rate of return on the account. Id. at 61-62, 70. But even if life insurance
beneficiaries (who do not themselves pay for life insurance) were analogous to 401(k)
plan participants (who invest their own money in various funds), the plaintiff in Vander
Luitgaren could not have cancelled his relationship with the service provider without
suffering a penalty—namely, losing the potential benefits under the life insurance policy.
31
He adduced no evidence that this policy forced participants to accept a Credited Rate or
that they felt effectively locked in to the KGPF. See CBOE, 713 F.2d at 260.
Like the 12-month waiting period’s potential effect on plans, the restriction on
competing investment options may impede participants from exiting the KGPF. But as
with the waiting period, Mr. Teets offered no evidence that the competing fund provision
has affected any of the 270,000 participants’ decisions to stay with or leave the KGPF.
Mr. Teets has not even alleged that the competing fund provision has affected his own
choice about participation in the KGPF.
In sum, in response to Great-West’s contention that it should receive summary
judgment because the plan participants are free to leave the KGPF after a change in the
Credited Rate, Mr. Teets said (1) the participants’ freedom to leave the KGPF is not
relevant to fiduciary status and (2) if it were, Great-West is a fiduciary because the limit
on competing funds restricted participants’ ability to leave. The first point seems to
concede the issue to Great-West. On the second, Mr. Teets failed to provide legal
support or “‘set forth specific facts’ from which a rational trier of fact could find” in his
favor. Libertarian Party of N.M., 506 F.3d at 1309 (citing Celotex, 477 U.S. at 323).
* * * *
Summary judgment on the issue of Great-West’s authority or control over the
Credited Rate was proper.
32
b. Control over compensation
Mr. Teets’s failure to show Great-West has authority or control over the Credited
Rate means he cannot show Great-West has authority or control over its compensation. 19
Great-West argues, and Mr. Teets does not contest, that its compensation is a function not
only of the Credited Rate, but also of “(1) the willingness of plans and participants to
accept the Credited Interest Rates that Great-West offers; and (2) the performance of the
volatile financial markets in which Great-West invests its general account.” Aplee. Br. at
31. Of these variables, Mr. Teets contends Great-West has control over the Credited
Rate. He acknowledges any control Great-West has over its compensation “will always
be cabined by external realities and limitations like the market’s actual performance. . . .
And plans and participants entering and leaving the [KGPF] will have some impact on
the total amount of Great-West’s compensation.” Aplt. Br. at 26 n.7. But, he argues,
“when Great-West exercises its authority to set the Credited Rate, it also determines the
amount of its own compensation.” Id. at 26.
19
A Department of Labor (“DOL”) rule cited by Great-West appears to suggest
that Great-West’s margin may not be compensation at all: “For purposes of [the
reasonable compensation] exemption, the ‘spread’ is not treated as compensation.” Final
Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24,
81 Fed. Reg. 21147, 21167 & n.62 (Apr. 8, 2016). The rule is somewhat ambiguous,
however. It also states that “compensation” under § 408(b)(2) includes “indirect
compensation received from any source other than the plan or IRA in connection with the
recommended transaction,” id. at 21167, which could conceivably include the money
Great-West earns on KGPF investments. We do not resolve this tension and instead
conclude that even if Great-West’s margin were compensation, Mr. Teets has not shown
that Great-West has sufficient control over it to be a fiduciary.
33
Mr. Teets’s argument that Great-West exercises authority or control over its
compensation because it exercises authority or control over the Credited Rate is self-
defeating. As we have already discussed, Mr. Teets has not shown that Great-West has
discretion over the Credited Rate. It follows that Great-West similarly lacks discretion or
control over its compensation. Accord Insigna v. United of Omaha Life Ins. Co., No.
8:17CV179, 2017 WL 6884626, at *4 (D. Neb. Oct. 26, 2017) (finding a service provider
did not exercise control over its compensation where its compensation was “too
attenuated” from its choice of monthly interest rate). Accordingly, summary judgment
was proper on Mr. Teets’s claims of fiduciary liability. 20
20
Great-West also argued in the district court that it was not a fiduciary because
ERISA’s guaranteed-benefit policy (“GBP”) exemption covers the KGPF. A GBP is “an
insurance policy or contract to the extent that such policy or contract provides for benefits
the amount of which is guaranteed by the insurer.” ERISA § 401(b)(2)(B), 29 U.S.C.
§ 1101(b)(2)(B). A key feature of GBPs is that they “allocate[] investment risk to the
insurer.” Harris Tr., 510 U.S. at 106. For plans incorporating GBPs, ERISA provides
that “the assets of such plan shall be deemed to include such policy, but shall not, solely
by reason of the issuance of such policy, be deemed to include any assets of such
insurer.” § 1101(b)(2). A company that issues a GBP cannot become a functional
fiduciary by exercising authority or control over plan funds because the funds are not
plan assets under the statute.
The district court found the KGPF allocates risk to Great-West because it
guarantees participants’ principal and all earned interest and because Great-West fixes
the rate of return in advance. Accordingly, it could not be a fiduciary in its
administration of the assets participants allocated to the KGPF. The court concluded that
the GBP exemption did not free Great-West of all fiduciary obligations because the
“contract by which the insurer obtained [participants’] contributions remains a part of the
plan,” and Great West’s management of the contract (as opposed to the money) could be
subject to fiduciary duties. Aplt. App., Vol. I at 91-92 (emphasis added).
On appeal, Great-West does not contend the GBP exemption shields it from
fiduciary status.
34
B. Non-Fiduciary Prohibited Transaction Claim
Having affirmed summary judgment that Great-West is not a fiduciary, we turn to
whether the district court properly granted summary judgment to Great-West on Mr.
Teets’s non-fiduciary party-in-interest claim. Because Mr. Teets failed to carry his
burden to show that he qualified for “appropriate equitable relief” under ERISA
§ 502(a)(3), we affirm summary judgment for Great-West. 21
1. Legal Background—ERISA
Section 406(a) of ERISA lists transactions that are prohibited between fiduciaries
and non-fiduciary parties in interest. 29 U.S.C. § 1106(a). Section 408(b) recognizes
exemptions to the prohibitions in § 406(a). 29 U.S.C. § 1108(b). Section 502(a)(3)
authorizes participants to bring civil suits to obtain equitable relief for violations of
ERISA. 29 U.S.C. § 1132(a)(3). We describe these provisions below and discuss how
they apply to fiduciaries and to non-fiduciary parties in interest, such as Great-West.
a. Prohibited transactions under ERISA § 406(a)
Section 406(a) of ERISA prohibits fiduciaries like the Farmer’s Rice Cooperative
from engaging in certain transactions with “part[ies] in interest,” such as service
21
The parties spent most of their summary judgment briefing in district court on
the fiduciary duty claims and devoted limited attention to this claim. Great-West’s
motion, Mr. Teets’s opposition, and Great-West’s reply each addressed the non-fiduciary
claim in less than three pages. Aplt. App., Vol. II at 181-83, 316-18, 366-68. As
explained below, Mr. Teets’s cursory treatment of this claim prevents him from
overcoming summary judgment.
35
providers like Great-West. 29 U.S.C. §§ 1106(a), 1002(14)(B). The transactions listed in
§ 406(a) “create some bright-line rules, on which plaintiffs are entitled to rely.” Allen v.
GreatBanc Trust Co., 835 F.3d 670, 676 (7th Cir. 2016). Congress enacted § 406(a)’s
“per se violations,” Chao v. Hall Holding Co., 285 F.3d 415, 441 n.12 (6th Cir. 2002), to
bar transactions “deemed likely to injure the . . . plan.” Salomon, 530 U.S. at 242
(quotations omitted). Violation of § 406(a) can lead to liability for fiduciaries or
non-fiduciary parties in interest. See id. at 241.
Under § 406(a), a fiduciary may not allow a plan to engage with a non-fiduciary
party in interest in a transaction that the fiduciary knows or should know is (1) a “sale or
exchange, or leasing, of any property between the plan and a party in interest”;
(2) “lending of money or other extension of credit between the plan and a party in
interest”; (3) “furnishing of goods, services, or facilities between the plan and a party in
interest”; (4) “transfer to, or use by or for the benefit of a party in interest, of any assets
of the plan”; or (5) “acquisition, on behalf of the plan, of any employer security or
employer real property in violation of [§] 1107(a).” 29 U.S.C. § 1106(a)(1)(A)-(E). On
its face, § 406(a) covers wide swaths of plan activity. But as the following section
explains, certain § 406(a) transactions are exempt from ERISA liability under § 408(b).
36
The § 406(a) 22 prohibition most relevant to this case is the “transfer to, or use by
or for the benefit of a party in interest, of any assets of the plan.” Id. § 1106(a)(1)(D). 23
b. Exemptions under ERISA § 408(b)
Although § 406(a) broadly delineates prohibited transactions, § 408(b) provides
exemptions for parties engaged in those transactions. 29 U.S.C. § 1108(b). “ERISA
plans engage in transactions nominally prohibited by § [406] all the time, while also
taking steps to comply with ERISA by relying on one or more of the many exceptions
under § [408].” Fish v. GreatBanc Tr. Co., 749 F.3d 671, 685-86 (7th Cir. 2014). These
exemptions allow plans to do business with parties in interest if certain conditions are
met. ERISA § 408(b), 29 U.S.C. § 1108(b).
22
Although Mr. Teets’s amended complaint alleged Great-West also violated
§ 406(b), that violation was premised on Great-West’s acting as a fiduciary.
Section 406(b) prohibits fiduciaries from benefitting from transactions with their plans,
and § 406(b) claims can only be brought against fiduciaries. See 29 U.S.C. § 1106(b).
23
Great-West contends Mr. Teets forfeited his argument that Great-West was a
party to a prohibited transaction under § 406(a) because he relied upon different
subsections of that statute to support his theory of liability in the district court. In the
district court, Mr. Teets argued Great-West engaged in a prohibited transaction when it
“use[d] . . . a plan asset . . . for [its] benefit,” invoking § 406(a)(1)(D). Aplt. App., Vol. II
at 217. He then stated in his opening brief that “Section [406](a) generally prohibits
parties in interest from ‘furnishing . . . services’ to a plan,” paraphrasing § 406(a)(1)(C).
Aplt. Br. at 41. His reply brief explains that his opening brief “plainly refers to activity
prohibited by Section [406](a)(1)(A) and (D),” and that he merely “quoted
[§ 406(a)(1)C)] as an example.” Aplt. Reply Br. at 19 (citations omitted). At oral
argument, counsel for Mr. Teets stated the prohibited transaction at issue was Great-
West’s use of plan assets for its own benefit, as prohibited under § 406(a)(1)(D). Oral
Arg. at 0:58-2:19. Mr. Teets thus has consistently contended that Great-West conducted
a prohibited transaction under § 406(a)(1)(D) and has not forfeited that argument. We
evaluate his non-fiduciary liability claim based on that provision.
37
The § 408(b) exemption pertinent to this case allows parties in interest to provide
“services necessary for the establishment or operation of the plan”—otherwise prohibited
under § 406(a)—so long as “no more than reasonable compensation is paid therefor.”
29 U.S.C. § 1108(b)(2). 24
c. Non-fiduciary party-in-interest liability for prohibited transactions
To be liable for a § 406(a) prohibited transaction, a non-fiduciary party in interest
such as Great-West must have engaged in such a transaction and “have had actual or
constructive knowledge of the circumstances that rendered the transaction unlawful.”
Salomon, 530 U.S. at 251. “Those circumstances, in turn, involve a showing that the
plan fiduciary, with actual or constructive knowledge of the facts satisfying the elements
of a § 406(a) transaction, caused the plan to engage in the transaction.” Id. But as
discussed above, even if the plaintiff can prove these § 406(a) elements, the party in
interest may not be liable if it qualifies for a § 408(b) exemption. 25 See 29 U.S.C.
§ 1108(b)(2); Salomon, 530 U.S. at 251.
24
As discussed in more detail in footnote 16 above, DOL rules suggest the
compensation that Mr. Teets claims was unreasonable—the margin Great-West retained
after paying participants according to the Credited Rate—is not “compensation” at all for
purposes of § 408(b).
25
The parties dispute whether the plaintiff or the non-fiduciary party in interest
bears the burden of establishing the party in interest’s eligibility for a § 408(b)
exemption. We need not resolve this dispute because we affirm the district court’s grant
of summary judgment as to Mr. Teets’s non-fiduciary claim on another ground.
38
d. Appropriate equitable relief
In addition to satisfying the requirements of Salomon, a plaintiff bringing suit
against a non-fiduciary party in interest must show that equitable relief can be granted.
ERISA’s civil enforcement provision, § 502(a)(3), allows a “participant, beneficiary, or
fiduciary” to bring a civil suit “to enjoin any act or practice” that violates ERISA or “to
obtain other appropriate equitable relief . . . to redress such violations.” 29 U.S.C.
§ 1132(a)(3). Satisfying § 502(a)(3) functions as an element of the ERISA claim. If a
plaintiff cannot demonstrate that equitable relief is available, the suit cannot proceed. For
example, in Central States, Southeast & Southwest Areas Health & Welfare Fund v.
Gerber Life Insurance Co., 771 F.3d 150 (2d Cir. 2014), the Second Circuit affirmed
dismissal of a plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6)
because it failed to seek appropriate equitable relief. Id. at 154-58; see also Great-West
Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 206 (2002) (“The question presented is
whether § 502(a)(3) of [ERISA] authorizes this action by petitioners . . . .”); accord
Pender v. Bank of Am. Corp., 788 F.3d 354, 361-65 (4th Cir. 2015) (treating the
§ 502(a)(3) inquiry as a threshold requirement at summary judgment stage).
In the remainder of this section we explain (1) how the Supreme Court has
interpreted the scope of § 502(a)(3), (2) the requirement that plaintiffs seeking equitable
restitution under § 502(a)(3) identify a specific res 26 from which they seek to recover,
26
The Latin term “res” generally refers to an “object, interest, or status, as
opposed to a person.” Res, Black’s Law Dictionary (10th ed. 2014). In the trust context,
it denotes the property that is the subject matter of a trust. See id.; Begier v. I.R.S., 496
U.S. 53, 70 (1990) (“[N]o trust exists until a res is identified.” (Scalia, J., concurring)).
39
(3) the modification of that requirement for claims seeking the restitutionary remedies of
accounting for profits and disgorgement of profits, and (4) the effect of a defendant’s
commingling assets with the plaintiff’s property on the availability of equitable relief.
i. Scope of equitable relief under § 502(a)(3)
The Supreme Court has interpreted “appropriate equitable relief” under
§ 502(a)(3) to include equitable remedies that only historical courts of equity were
empowered to award. It has excluded remedies typically available in historical courts of
law, such as compensatory damages.
In Mertens, the Supreme Court said that § 502(a)(3) of ERISA encompasses
“those categories of relief that were typically available in equity (such as injunction,
mandamus, and restitution, but not compensatory damages).” 508 U.S. at 256. “[A]t
common law, the courts of equity had exclusive jurisdiction over virtually all actions by
beneficiaries for breach of trust.” Id. “[T]here were many situations . . . in which an
equity court could ‘establish purely legal rights and grant legal remedies which would
otherwise be beyond the scope of its authority.’” Id. (quoting 1 Spencer W. Symons,
Pomeroy’s Equity Jurisprudence § 181 at 257 (5th ed. 1941)). But “appropriate equitable
relief” does not encompass all forms of “relief a court of equity [would be] empowered to
provide in the particular case at issue, including ancillary legal remedies.” Montanile v.
Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 660 (2016)
(quotations omitted). Instead, it includes remedies that could be awarded only by equity
courts. See Mertens, 508 U.S. at 258 (“Regarding ‘equitable’ relief in § 502(a)(3) to
mean ‘all relief available for breach of trust at common law’ would . . . deprive of all
40
meaning the distinction Congress drew between . . . ‘equitable’ and ‘legal’ relief.”).
Thus, “legal remedies—even legal remedies that a court of equity could sometimes
award—are not ‘equitable relief’ under § 502(a)(3).” Montanile, 136 S. Ct. at 661.
Certain remedies can be equitable or legal, depending on the circumstances.
“Equitable remedies ‘are, as a general rule, directed against some specific thing; they
give or enforce a right to or over some particular thing . . . rather than a right to recover a
sum of money generally out of the defendant’s assets.’” Id. at 658-59 (alteration in
original) (quoting 4 Symons, § 1234 at 694). “[T]he fact that . . . relief takes the form of
a money payment does not remove it from the category of traditionally equitable relief.”
CIGNA Corp v. Amara, 563 U.S. 421, 441 (2011).
ii. Tracing requirement for equitable restitution
Payment of restitution, which Mr. Teets seeks, can be equitable or legal. See
Knudson, 534 U.S. at 212. A plaintiff can recover equitable restitution, “ordinarily in the
form of a constructive trust or an equitable lien, where money or property identified as
belonging in good conscience to the plaintiff could clearly be traced to particular funds or
property in the defendant’s possession.” 27 Id. at 213. In those circumstances, “[a] court
27
The Salomon Court explained a constructive trust:
Whenever the legal title to property is obtained through
means or under circumstances which render it
unconscientious for the holder of the legal title to retain and
enjoy the beneficial interest, equity impresses a constructive
trust on the property thus acquired in favor of the one who is
truly and equitably entitled to the same . . . .
530 U.S. at 250-51 (quoting Moore v. Crawford, 130 U.S. 122, 128 (1889)); see also 1
Dan B. Dobbs, Dobbs Law of Remedies § 4.3(1) at 587 (2d ed. 1993) (“In the
41
of equity could . . . order a defendant to transfer title (in the case of the constructive trust)
or to give a security interest (in the case of the equitable lien) to a plaintiff who was, in
the eyes of equity, the true owner.” Id. Accordingly, “[f]or restitution to lie in equity, the
action generally must seek not to impose personal liability on the defendant, but to
restore to the plaintiff particular funds or property in the defendant’s possession.” Id.
at 214.
In contrast, when the plaintiff cannot “assert title or right to possession of
particular property, but in which nevertheless he might be able to show just grounds for
recovering money to pay for some benefit the defendant had received from him,” the
plaintiff has a right to legal restitution. Knudson, 534 U.S. at 213 (quoting 1 Dan B.
Dobbs, Dobbs Law of Remedies § 4.2(1) at 571 (2d ed. 1993)). Such claims are
considered legal because the plaintiff is seeking “to obtain a judgment imposing a merely
personal liability upon the defendant to pay a sum of money.” Id. (quoting Restatement
(First) of Restitution § 160 cmt. a (Am. Law Inst. 1937)); accord Montanile, 136 S. Ct.
at 659 (describing “a personal claim against the wrongdoer” as “a quintessential action at
constructive trust case the defendant has legal rights in something that in good conscience
belongs to the plaintiff. The property is ‘subject to a constructive trust.’”).
An equitable lien “is simply a right of a special nature over the thing . . . so that
the very thing itself may be proceeded against in an equitable action.” Montanile, 136 S.
Ct. at 659 (alteration in original) (quoting 4 Symons, § 1233 at 692). An equitable lien
can arise out of a contract between the parties or can be “imposed, not as a matter of
contract, but to prevent unjust enrichment.” 1 Dobbs, § 4.3(3) at 601. In such a case, the
equitable lien “is essentially a special, and limited, form of the constructive trust.” Id.
42
law”). As we have explained, under § 502(a)(3), legal restitution is not available for
ERISA claims.
iii. Modified tracing requirement for accounting and disgorgement of
profits
Accounting for profits (also referred to as an “accounting”) and disgorgement of
profits are forms of restitution. See Knudson, 534 U.S. at 214 n.2 (“[A]n accounting for
profits [is] a form of equitable restitution.”); Tull v. United States, 481 U.S. 412, 424
(1987) (“An action for disgorgement of improper profits . . . is a remedy only for
restitution.”). 28 “The ground of this liability is unjust enrichment.” 1 Dobbs, § 4.3(5) at
611. A court order for an accounting or disgorgement of profits allows the plaintiff to
“recover a judgment for the profits due from use of his property,” id. at 608, and thus
“holds the defendant liable for his profits, not for damages,” id. at 611.
The tracing requirement described above for equitable restitution also applies to
accounting and disgorgement of profits but may be modified in certain limited
circumstances. See Knudson, 534 U.S. at 214 n.2. “If, for example, a plaintiff is entitled
to a constructive trust on a particular property held by the defendant, he may also recover
profits produced by the defendant’s use of that property, even if he cannot identify a
particular res containing the profits sought to be recovered.” Id.; Pender, 788 F.3d at
28
See also Edmonson, 725 F.3d at 419 (“[D]isgorgement and accounting for
profits are essentially the same remedy.” (citing Restatement (Third) of Restitution and
Unjust Enrichment § 51(4) & cmt. a (Am. Law Inst. 2011))).
43
364 29; 1 Dobbs, § 4.3(5) at 614 (“If the accounting seeks to recover a fund that has been
traced, so that it is in effect a constructive trust on a fund of money, the case might be
classed as an equitable suit.”).
To qualify for this remedy in equity, the plaintiff still must show entitlement “to a
constructive trust on particular property held by the defendant” that the defendant used to
generate the profits. Knudson, 534 U.S. at 214 n.2; see also In re Unisys Corp. Retiree
Med. Benefits ERISA Litig., 579 F.3d 220, 238 (3d Cir. 2009) (“[P]laintiffs cannot
recover under [an accounting or a disgorgement of profits] theory without first
identifying the profit generating property or money wrongly held by [the defendant].”);
Urakhchin v. Allianz Asset Mgmt. of Am., L.P., No. SACV 15-1614-JLS (JCGx), 2016
WL 4507117 (C.D. Cal. Aug. 5, 2016). 30 Accordingly, without a particular profit-
29
In Pender, the Fourth Circuit held that retirement plan participants seeking
disgorgement of profits satisfied § 502(a)(3)’s “appropriate equitable relief” requirement.
788 F.3d at 365. The participants invested in a retirement plan managed by their
employer. The employer offered participants the option to transfer existing investments
into a new account that, unlike the original account, guaranteed they would not lose their
principal. See id. at 358. The new account appeared to allow participants to select from a
list of investment options with declared rates of return, but in reality, the employer
invested participants’ money in higher-return instruments and pocketed any returns
leftover after paying participants according to the declared rates. Id. at 358-59. The IRS
declared the transfers unlawful and the participants sued under ERISA for disgorgement
of the employer’s profits. Id. at 358. The Fourth Circuit held the participants could bring
their claims under § 502(a)(3) of ERISA because they were “seek[ing] profits generated
using assets that belonged to them.” Id. at 365.
30
In Urakhchin, participants in a 401(k) retirement plan sought under § 502(a)(3)
to recover profits from non-fiduciary defendants who allegedly “improperly receive[d]
Plan assets as profits at the expense of the Plan and its beneficiaries.” 2016 WL
4507117, at *2. The court dismissed the complaint, explaining that the complaint was
missing an allegation that the plaintiffs would “be able to trace the exact transactions and
44
generating res, a claim for payment out of the defendant’s general assets is a request for
legal relief rather than for equitable accounting or disgorgement of profits and cannot be
awarded under § 502(a)(3).
iv. Commingled funds and traceability
If a defendant disposes of all of the particular property that allegedly should
belong to the plaintiff under equitable principles, the plaintiff no longer has a specifically
identifiable res. The Supreme Court said in Montanile that § 502(a)(3) does not
authorize “a suit to attach the [defendant’s] general assets” as a substitute for the
previously identifiable property. 136 S. Ct. at 655; see also Knudson, 534 U.S. at 213-14.
Montanile further recognized “that commingling a specifically identified fund—to which
a lien attached—with a different fund of the defendant’s did not destroy the lien. Instead,
that commingling allowed the plaintiff to recover the amount of the lien from the entire
pot of money.” 136 S. Ct. at 661. In other words, “[t]he person whose money is
wrongfully mingled with money of the wrongdoer does not thereby lose his interest in the
money, . . . but he acquires an interest in the mingled fund.” Restatement (First) of
Restitution § 209 cmt. a (Am. Law Inst. 1937).
2. Additional Procedural Background
Because we review summary judgment based on the “materials adequately
brought to the attention of the district court by the parties,” Adler v. Wal-Mart Stores,
entities related to each fiduciary breach, and thus [that] the property is sufficiently
traceable for purposes of an equitable restitution claim.” Id. at *8.
45
Inc., 144 F.3d 664, 671 (10th Cir.1998), we recount Mr. Teets’s response to Great-West’s
summary judgment motion. We then summarize the district court’s ruling.
a. Great-West’s motion for summary judgment on the non-fiduciary claim and Mr.
Teets’s response
Great-West’s sole argument for summary judgment on Mr. Teets’s non-fiduciary
claim was that he did not seek “appropriate equitable relief” available under ERISA.
Great-West contended that Mr. Teets was seeking “as damages the margin on Great-
West’s general account assets” and claimed he “[could not] point to any evidence that
Great-West’s general account investment returns form a specifically-identifiable res that
properly can be traced to any plan.” Aplt. App., Vol. II at 182-83.
Mr. Teets did not attempt to rebut Great-West’s argument by identifying the funds
in Great-West’s possession that generated the alleged profits he sought to recover. In his
response, Mr. Teets stated that accounting and disgorgement of profits are recognized
forms of equitable relief, id. at 317, and that “disgorgement of profits does not require the
recovered funds to be traceable to a res or particular funds.” Id. at 318.
b. District court ruling
The district court started with whether equitable relief was a possible remedy for
Mr. Teets’s claim and whether summary judgment could be granted because it was not.
It recognized that “an order to pay money, even if functionally equivalent to a judgement
awarding damages, qualifies as ‘appropriate equitable relief’ in some ERISA cases.”
Aplt. App., Vol. I at 102. Citing Knudson, 534 U.S. at 212-21, the court explained that
an accounting for profits could be one such type of monetary equitable relief. But the
46
court ultimately declined to decide whether the relief Mr. Teets requested was equitable,
pointing to the hazy “distinction between money-awarding remedies at law and money-
awarding remedies in equity.” Id. at 104.
Instead, the district court granted summary judgment for Great-West on a ground
Great-West had not raised in its motion, concluding that Mr. Teets had not adduced
sufficient evidence of Great-West’s liability for its participation in a prohibited
transaction. Id. at 106-08. The court rejected Mr. Teets’s argument that Salomon
required him to show only that Great-West as a party in interest had knowledge of “facts
satisfying the elements” of ERISA § 406(a). Id. at 105-06. The court compared
Salomon’s description of the knowledge that defendant fiduciaries must have to be
liable—“facts satisfying the elements of a § 406(a) transaction,” Salomon, 530 U.S. at
251—with Salomon’s requirement that defendant non-fiduciary parties in interest have
knowledge of the “circumstances that render the transaction unlawful,” observing that the
latter “appears aimed at exploring not just knowledge of the underlying facts, but
knowledge of their potential unlawfulness.” Aplt. App., Vol. I at 106. Accordingly, the
court concluded that Mr. Teets must prove that Great-West, as a non-fiduciary party in
interest, “knew or should have known that the transaction violated ERISA.” Id. at 107.
Because Mr. Teets “ha[d] not attempted to make this showing,” his claim could not
survive summary judgment. Id.
3. Analysis
To prevail on his non-fiduciary claim, Mr. Teets must show, among other things,
that he seeks equitable relief under § 502(a)(3) of ERISA. We conclude summary
47
judgment was properly granted because Mr. Teets failed to identify the particular
property in Great-West’s possession over which he can “assert title or right to
possession.” Knudson, 534 U.S. at 213. He therefore failed to meet his burden to
demonstrate the relief he seeks is equitable under § 502(a)(3).
a. Summary judgment standard—review of materials presented to district court
When this court reviews a district court’s grant of summary judgment, “we
conduct that review from the perspective of the district court at the time it made its
ruling, ordinarily limiting our review to the materials adequately brought to the attention
of the district court by the parties.” Adler, 144 F.3d at 671. The district court may “go
beyond the referenced portions” of the plaintiffs’ evidentiary materials, “but is not
required to do so.” Id. at 672.
This court also may “more broadly review the record on appeal,” but we ordinarily
do not do so because “we, like the district courts, have a limited and neutral role in the
adversarial process, and are wary of becoming advocates who comb the record of
previously available evidence and make a party’s case for it.” Id.; see SIL-FLO, Inc. v.
SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir. 1990) (holding that the court of appeals
“need not ‘sift through’ the record to find [the appellant’s] evidence” in the absence of
citations in the appellant’s brief). “Thus, where the burden to present such specific facts
by reference to exhibits and the existing record was not adequately met below, we will
not reverse a district court for failing to uncover them itself.” Adler, 144 F.3d at 672.
48
b. Waiver of request for injunction
Mr. Teets did not preserve an argument that his amended complaint’s request for
an injunction satisfies § 502(a)(3)’s allowance for suits seeking “to enjoin any act or
practice” that violates ERISA. 29 U.S.C. § 1132(a)(3). His amended complaint asked
the court to “[e]njoin Defendant from further prohibited transactions,” Aplt. App., Vol. I
at 38, which appears to satisfy § 502(a)(3). But Mr. Teets failed to rely on this remedy to
overcome summary judgment.
Mr. Teets has not mentioned injunctive relief in any filing since the amended
complaint. When prompted by Great-West’s motion, he relied on other remedies—
namely, accounting and disgorgement of profits. Great-West’s motion stated not only
that Mr. Teets could not satisfy the “appropriate equitable relief” standard, but also that
“the relief Plaintiff seeks is not available under [§ 502(a)(3)]” at all. Aplt. App., Vol. II
at 181. In response, Mr. Teets did not mention an injunction, instead asserting only that
he sought “Appropriate Equitable Relief,” and even quoting that distinct portion of the
statute. Id. at 316-17.
Even if Mr. Teets had done enough in the district court to preserve his argument
that his request for an injunction satisfied § 502(a)(3), he has abandoned any such
argument on appeal. In this court, Mr. Teets argues that “ERISA provides [him] a
remedy for Great-West’s violation,” but he never mentions the injunction. Aplt. Br.
49
at 50. He explains, “Restitution of property and disgorgement are the central remedies
Mr. Teets seeks here.” Aplt. Reply Br. at 26. 31
Thus, although § 502(a)(3) authorizes injunctive relief, Mr. Teets did not rely on
this form of relief to contest summary judgment, and he does not even do so on appeal.
He has waived this basis to overcome summary judgment. See Tran v. Trs. of State
Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening
brief are deemed abandoned or waived.” (quotations omitted)); see also Paycom Payroll,
LLC v. Richison, 758 F.3d 1198, 1203 (10th Cir. 2014) (holding appellant had waived
challenge to one element of copyright infringement claim by urging district court to rule
on a separate element).
c. Failure to specify particular profit-generating property
Mr. Teets’s amended complaint requested monetary relief in the form of
(1) disgorgement of the profits Great-West obtained through knowing participation in
prohibited transactions; (2) imposition of a constructive trust or equitable lien on funds
Great-West received through those transactions; and (3) “other appropriate equitable
relief,” including restitution and an accounting for profits. Aplt. App., Vol. I at 38.
As discussed above, to be eligible for “appropriate equitable relief” in the form of
restitution, Mr. Teets must show that Great-West possesses particular property that
31
The reply brief elaborates on the remedies Mr. Teets sought in the district court,
but injunctive relief is conspicuously absent: “Great-West claims Mr. Teets sought only
an accounting for profits below. This is incorrect: he also specifically requested
‘disgorge[ment],’ ‘constructive trust,’ ‘equitable lien,’ and ‘restitution.’” Aplt. Reply Br.
at 26 n.11 (alteration in original) (citation omitted) (quoting Aplt. App., Vol. I at 38).
50
rightfully belongs to him. Knudson, 534 U.S. at 213. For an accounting or disgorgement
of profits, he still must show that Great-West possesses particular property over which he
can “assert title or right to possession,” though the profit generated from the property
need not be contained in a specifically identifiable res. See id. at 213, 214 n.2.
Great-West may possess such “particular property,” but Mr. Teets failed to
identify any such property in his response to Great-West’s summary judgment motion.
Id. at 213. In its motion, Great-West argued that the report prepared by Mr. Teets’s
damages expert showed that Mr. Teets sought “as damages the margin on Great-West’s
general account assets.” Aplt. App., Vol. II at 182. Great-West asserted that Mr. Teets
“[could not] point to any evidence that Great-West’s general account investment returns
form a specifically-identifiable res that properly can be traced to any plan.” Id. at 183.
In response, Mr. Teets did not attempt to identify the funds in Great-West’s possession
that rightfully belonged to him—that is, the funds that generated the unlawful profits he
sought to recover. Instead, he made a legal argument that “disgorgement of profits does
not require the recovered funds to be traceable to a res or particular funds.” Id. at 318.
As explained below, his legal argument was wrong.
As a result, the district court was left to guess what particular property Mr. Teets
would assert (1) rightfully belonged to him and (2) was used to generate unlawful profits.
It might have been, to borrow Great-West’s phrasing, the “amounts [participants]
contributed to the plans,” which are “automatically credited to the accounts of individual
participants.” Id. at 167. Or it might have been, as the district court assumed, “the
margin Defendant earned on Fund contributions.” Aplt. App., Vol. I at 103. It could also
51
have been any “compensation” Great-West retained beyond an amount that was
“reasonable” in relation to its services under ERISA § 408(b). See Aplt. Br. at 45-50; 29
U.S.C. § 1108(b)(2). But Mr. Teets neither identified the property or res nor explained
why it would qualify for equitable relief.
d. Mr. Teets’s arguments fail
Mr. Teets’s primary argument, both in the district court and on appeal, see Aplt.
App., Vol. II at 318, is that ERISA does not require him to point to a specific res to be
eligible for disgorgement as an equitable remedy. First, he contends that Salomon
“endorsed” disgorgement of profits as an equitable remedy under ERISA. Aplt. Br.
at 51-52. Second, he argues that trust law treatises and restatements confirm that
accounting and disgorgement of profits are equitable remedies, even without an
identifiable res. Id. at 52-53. He states, “[W]hen a third-party transferee takes with
knowledge of the breach”—here, when Great-West participates in a prohibited
transaction—“‘the seller takes the purchase money subject to the trust and can be
compelled to restore it.’” Id. at 52 (quoting Austin W. Scott & William F. Fratcher, Law
of Trusts § 291.1 (4th ed. 1989)). Furthermore, under such a framework, if “the
transferee has disposed of the property, the beneficiary can charge him with the value of
the property.” Id. (quoting Scott & Fratcher, § 291.2); accord Restatement (Second) of
Trusts § 291 (Am. Law Inst. 1959). Mr. Teets thus contends that he may sue Great-West
for any funds Great-West obtained through its participation in a prohibited transaction,
including profits, and can recover a “money judgment as to the balance,” even if it is not
52
identifiable. Aplt. Br. at 53 (quoting George G. Bogert, George T. Bogert & Amy Morris
Hess, Law of Trusts & Trustees § 868 (2018)).
Mr. Teets’s argument overlooks how the Supreme Court has limited the remedies
available under § 502(a)(3). As stated above, the fact that equity courts at common law
could award a particular remedy does not mean the remedy is necessarily equitable for
purposes of ERISA. Rather, “legal remedies—even legal remedies that a court of equity
could sometimes award—are not ‘equitable relief’ under§ 502(a)(3).” Montanile, 136 S.
Ct. at 661.
Mr. Teets relies on authorities that discuss what remedies an equity court could
award for a breach of trust, not whether those remedies are legal or equitable in nature.
As the Salomon Court stated:
[W]hen a trustee in breach of his fiduciary duty to the
beneficiaries transfers trust property to a third person, the
third person takes the property subject to the trust . . . . The
trustee or beneficiaries may . . . maintain an action for
restitution of the property (if not already disposed of) or
disgorgement of proceeds (if already disposed of), and
disgorgement of the third person’s profits derived therefrom.
530 U.S. at 250. But unless the profits Mr. Teets seeks to recover were generated from
particular property over which Mr. Teets can “assert title or right to possession,”
Knudson, 534 U.S. at 213, an order to disgorge them is a legal remedy, even if a court
sitting in equity would have had jurisdiction to order that remedy. And a legal remedy is
not allowed under § 502(a)(3).
Mr. Teets also argues that his attempt to recover from the commingled profits in
Great-West’s general account does not bar equitable relief. This assertion, however,
53
skips a critical step to establish appropriate equitable relief under § 502(a)(3)—namely,
identifying the property that Great-West has commingled with its other assets. He has
not specified the assets he alleges were commingled with Great-West’s general account
to generate the profits he seeks to disgorge, which is fatal to his claim under § 502(a)(3).
See In re Unisys Corp., 579 F.3d at 238 (holding that because “plaintiffs [were] unable to
identify ‘money or property . . . belonging in good conscience’ to them and clearly
‘trace[able] to particular funds or property in the defendant’s possession,’ they [could
not] recover profits from [defendants] as a form of equitable relief.” (second and third
alterations in original) (citation omitted) (quoting Knudson, 534 U.S. at 213)). As a
result, summary judgment was proper.
III. CONCLUSION
Great-West was entitled to summary judgment on both the fiduciary and non-
fiduciary claims. Because Mr. Teets has not provided evidence that contractual
restrictions on withdrawal from the KGPF actually constrained plans or participants,
Great-West does not act as an ERISA fiduciary when it sets the KGPF’s Credited Rate
each quarter. As a result, it also lacks sufficient authority or control over its
compensation to render it a fiduciary. As to liability as a party in interest, Great-West
54
was entitled to summary judgment because Mr. Teets failed in the district court to carry
his burden of showing that the relief he sought was equitable. 32
32
Because we affirm the grant of Great-West’s summary judgment motion, we
also conclude the district court properly denied Mr. Teets’s motion for summary
judgment. See Phila. Indem. Ins. Co. v. Lexington Ins. Co., 845 F.3d 1330, 1336 n.4
(10th Cir. 2017).
We grant the parties’ motions to seal their appellate briefs and appendices in light
of their submission at the court’s request of publicly-available redacted versions of those
filings.
55
| {
"pile_set_name": "FreeLaw"
} |
489 F.3d 1173
The NEWS-PRESS, division of Multimedia Holdings Corporation, Cape Publications, Inc., publisher of Florida Today, Pensacola News-Journal, division of Multimedia Holdings Corporation, Plaintiffs-Appellants,v.U.S. DEPARTMENT OF HOMELAND SECURITY, Federal Emergency Management Agency, Defendants-Appellees.Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel, Plaintiff-Appellee,v.U.S. Department of Homeland Security, Federal Emergency Management Agency, Defendants-Appellants.
No. 05-16771.
No. 06-13306.
United States Court of Appeals, Eleventh Circuit.
June 22, 2007.
Steven L. Brannock, James B. Lake, David Clark Borucke, Holland & Knight, LLP, Gregg D. Thomas, Thomas & LoCicero, PL, Tampa, FL, Charles D. Tobin, Holland & Knight, LLP, Washington, DC, for Plaintiffs-Appellants.
Scott A. Hershovitz, Mark B. Stern, U.S. Dept. of Justice, Washington, DC, Todd B. Grandy, Tampa, FL, Anne R. Schultz, U.S. Atty., Miami, FL, for U.S. Homeland Sec. & FEMA.
Thomas R. Julin, Patricia Acosta, Hunton & Williams, LLP, Miami, FL, for Amici Curiae.
Rachel Elise Fugate, Deanna Kendall Shullman, Thomas & LoCicero, PL, Tampa, FL, David S. Bralow, Tribune Co., New York City, for Sun-Sentinel Co.
Appeals from the United States District Court for the Southern District of Florida.
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
MARCUS, Circuit Judge:
1
These consolidated appeals arise out of an unprecedented storm season in which four hurricanes — Hurricanes Charley, Frances, Ivan, and Jeanne — hit Florida within one six-week period during 2004. In response, the Federal Emergency Management Agency ("FEMA") disbursed $1.2 billion in individual disaster assistance to more than 605,500 Floridians, and also paid out claims to tens of thousands of individuals whose structures were insured under FEMA's National Flood Insurance Program. After questions were raised concerning how individual disaster assistance was disbursed in one Florida county following one of the hurricanes, the plaintiff newspapers collectively requested, under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), disbursement data for all four 2004 hurricanes plus an additional 27 disasters dating back some ten years. FEMA redacted the names and addresses from the data it provided, on the grounds that disclosing this information "would constitute a clearly unwarranted invasion of personal privacy" within the meaning of Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). In News-Press v. U.S. Department of Homeland Security, the United States District Court for the Middle District of Florida held that disclosure of both the names and the addresses was exempt under Exemption 6. In Sun-Sentinel v. U.S. Department of Homeland Security, the United States District Court for the Southern District of Florida reached nearly the opposite conclusion, holding that FOIA requires FEMA to disclose the addresses, although not the names.
2
At issue today is whether FEMA has established that the names and addresses of 1.3 million individuals who applied for aid or made insurance claims after one of 31 federally-declared disasters are exempt from disclosure under the FOIA, on the grounds that releasing this information "would constitute a clearly unwarranted invasion of personal privacy" within the meaning of Exemption 6. After thorough review, we conclude that the addresses are not exempt under Exemption 6 because FEMA has failed to meet its heavy burden of showing a "clearly unwarranted invasion of personal privacy." In light of FEMA's awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility. Plainly, disclosure of the addresses will help the public answer this question by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country, and we cannot find any privacy interests here that even begin to outweigh this public interest. However, because there is only minimal additional public interest in disclosing the names, we conclude that they are exempt under Exemption 6.
I. Background
3
The following facts are culled from both summary judgment records and are undisputed. In the aftermath of the September 11, 2001 terrorist attacks, Congress created a Cabinet-level Department of Homeland Security ("DHS") to serve as an umbrella organization for twenty-two federal departments. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002). On January 10, 2003, President George W. Bush nominated Michael D. Brown ("Brown") to serve as the DHS's first Under Secretary of Emergency Preparedness and Response. On March 1, 2003, the Federal Emergency Management Agency ("FEMA") — whose mission is to "lead the effort to prepare the nation for all potential disasters and to manage the federal response and recovery efforts following any national incident — whether natural or man-made," http://www.fema. gov/library/view Record.do?id=1756; see also Homeland Security Act § 502, 116 Stat. at 2212 — was formally folded into the DHS, and Brown assumed the position of Director of FEMA.
A. The 2004 Florida Hurricane Season
4
Within six weeks during August and September of 2004, portions of Florida sustained extensive damage from Hurricanes Charley, Frances, Ivan, and Jeanne — the first time since 1886 that a state has been struck by four hurricanes in a single year. After each hurricane, President Bush issued a major disaster declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq. ("the Stafford Act"), and directed FEMA to provide federal disaster assistance to the affected areas. At that time, FEMA's response to the four 2004 hurricanes comprised the largest mobilization of emergency response and disaster recovery resources in FEMA history, exceeding even the agency's operational response to the attacks of September 11, 2001.
5
As a result of the 2004 hurricanes, FEMA received over 33,000 claims from Floridians under the National Flood Insurance Program ("NFIP"). Under this program, homeowners, renters, and business owners in certain designated flood-prone areas are eligible to purchase federal flood insurance for their building structures and their contents.
6
FEMA also paid out $1.2 billion in aid to more than 605,500 Floridians under the Individuals and Households Program ("IHP"), which provides financial assistance (that is not repaid by the recipient) and direct services to individuals and households who seek to "prevent, mitigate, or overcome a disaster-related hardship, injury or adverse condition" when those needs cannot be met in any other way. 44 C.F.R. § 206.111; see also 42 U.S.C. § 5174(a)(1). There are two components of the IHP — Housing Assistance ("HA") and Other Needs Assistance ("ONA") — and roughly half of the IHP aid was disbursed under each component. Under the HA component, FEMA compensates individuals for temporary housing, the repair or replacement of damaged housing, or for "hazard mitigation measures" to their residences to reduce the likelihood of damage in the future. Individuals may also receive direct assistance in the form of temporary FEMA housing. Finally, 95,000 Floridians qualified for Expedited Assistance ("EA"), a form of Housing Assistance under which they were immediately given, without inspection, funds in the equivalent of one month's fair market rent to be used toward their disaster-related housing needs. Under the ONA component, FEMA compensates individuals for funeral expenses, medical and dental costs, the repair and replacement of personal property, transportation expenses, moving and storage expenses, and other expenses, such as generators, deemed by FEMA to constitute a necessary expense or serious need.
7
With the exception of EA, all other IHP aid is disbursed only after FEMA's contract inspectors verify the accuracy of claims, including the existence of disaster-related damage to real and personal property, as well as ownership or occupancy. Inspectors using portable data devices upload their findings to FEMA's processing system, the National Emergency Management Information System ("NEMIS"), and in more than 90% of cases, an award is made on the basis of that inspection information.1 Inspectors determine the amount of personal property loss under the ONA component using the Generic Room Concept: rather than comparing the state of household belongings after a disaster to the state of those belongings before the disaster, FEMA inspectors compare the post-disaster state of a household's belongings to the belongings in a hypothetical room FEMA has predetermined constitutes an "average" American kitchen, bathroom, living room, or bedroom.2 The value of a full, hypothetical room ranges from $862 (for a bathroom) to $2,495 (for a bedroom). Inspectors make ONA awards by categorizing rooms in one of three ways. If the inspector determines that all items in a room must be replaced, the household receives the full value of an average room. If some of the room's contents must be replaced but others can be repaired, however, the household receives only a portion of the value of a full room. Finally, if all of a room's items can be repaired, then the household receives a still smaller portion of the value of a full room.
8
Damage to other personal property, such as appliances, clothing, and automobiles, is assessed differently. For example, inspectors categorize damaged automobiles as "destroyed," "repairable," or "cosmetic," and award the replacement cost rather than market value; inspectors must confirm that damage is disaster-related, but are not required to note how they confirmed this, or even the type of damage sustained. Similarly, inspectors are generally permitted to award money for losses to personal property that is not present at the time of inspection, so long as the damage or loss can be reasonably verified in some other way. Inspectors note such verbal representations as "PP Verbal"s, but are not required to document how they verified the loss, or even what the lost item was.
9
Of the $1.2 billion paid in IHP aid to Floridians as a result of the 2004 hurricane season, $31 million went to residents of Miami-Dade County for damage resulting from Hurricane Frances alone, including $13 million in Housing Assistance (over $1 million of which was disbursed to 1,400 residents as Expedited Assistance) and just under $18 million in Other Needs Assistance (the majority of which was disbursed to compensate personal property losses).
10
By October of 2004, soon after the hurricane season ended, the media had begun to question why Miami-Dade County, which in fact suffered only tropical storm-force sustained winds and no substantial rainfall accumulation, had been declared eligible for disaster relief as a result of Hurricane Frances, the eye of which made landfall some 100 miles to the north of the county,3 and why its residents apparently required $31 million in IHP assistance. Counties that suffered direct hits, the media reports claimed, received less aid. Reports also surfaced that since 2003, the number of National Flood Insurance Program-covered properties that have flooded repeatedly had more than doubled; for example, one North Miami property had reportedly flooded 17 times but remained NFIP-eligible, and without increased premiums. The media's concern was soon shared by federal, state, and local officials, as well as by the public at large.
11
We recount in some detail both the various allegations that FEMA's disbursement of IHP aid in Miami-Dade (and quite possibly in other Florida counties during 2004 and indeed in other states in other years after other disasters) was plagued with fraud, waste, and abuse, as well as FEMA's responses to these allegations. We do so for several reasons. First, the weight of the discernible public interest in learning whether FEMA has been a good steward turns, in part, on how many tax dollars were spent in IHP aid following various disasters, as well as how much of that money may have been disbursed under conditions of fraud, waste, or abuse. Similarly, the weight of the public interest also turns in some measure on whether whatever problems occurred in Miami-Dade after Hurricane Frances were likely confined to that occasion and location, or whether they may instead be an indication of more systemic problems in FEMA's individual assistance program that may have affected many more Americans and billions more tax dollars. Finally, the weight of the public interest turns, in part, on whether these questions have already been answered fully, or whether, instead, important questions remain that the names or addresses may help resolve.
12
In a prepared statement distributed to the press, Daniel Craig, FEMA's Director of Recovery ("Craig"), downplayed the possibility that either applicant fraud or agency error contributed to FEMA's distribution of aid to Floridians. "[W]hen you consider the magnitude of the recovery effort," he said, "our process handled the applications very well." Prepared Statement of FEMA Director of Recovery Daniel Craig Regarding Florida Disaster Assistance 3 (Jan. 10, 2005). "[T]here's currently no evidence of widespread fraud, waste or abuse of FEMA's disaster assistance programs in Florida." Id. at 1. "We've found that the majority of concerns raised regarding assistance provided to individuals in Florida have logical explanations and are not representative of widespread fraud." Id. at 2 (emphasis in original).
13
Despite FEMA's attempts to downplay any systemic problems in its distribution process, various internal and external investigations into FEMA's response to Hurricane Frances in Miami-Dade County soon began. In January of 2005, both the Office of Inspector General ("OIG") of the Department of Homeland Security and the United States Senate Committee on Homeland Security and Governmental Affairs ("Senate Committee") announced they were opening investigations. Meanwhile, on March 2, 2005, the United States Attorney for the Southern District of Florida announced the indictments of fourteen Miami-Dade defendants on charges that each fraudulently claimed thousands of dollars — sometimes tens of thousands of dollars — in damage to his or her personal property from Hurricane Frances. In some cases, the indictments charged that damage to the defendant's personal property had been sustained prior to Hurricane Frances. In at least three cases, the indictments charged that the defendant claimed losses from a hurricane-damaged property where he had not resided at the time of the hurricane.
14
On May 18, 2005, the OIG released the results of its internal audit into FEMA's response to the 2004 hurricane season. See Dep't of Homeland Sec., Office of the Inspector Gen., Audit of FEMA's Individuals and Households Program in Miami-Dade County, Florida, for Hurricane Frances (2005) [hereinafter OIG Audit Report].4 The audit was overseen by Richard Skinner, then Acting Inspector General ("Skinner"). On the same day, the Senate Committee held hearings pursuant to its own investigation, in which it heard testimony from Brown and Skinner concerning the OIG Audit Report.
15
The purpose of the OIG audit was "to determine whether FEMA had sufficient evidence to support [Miami-Dade] county's eligibility for IHP assistance and whether adequate program controls existed to ensure that funds were provided only to eligible applicants, for eligible expenses." Id. at 3. Importantly, the audit was limited to (1) only 3% of (2) IHP awards (3) disbursed to residents of Miami-Dade County (4) who claimed damage from Hurricane Frances. In addition, the audit did not "evaluate the controls in NEMIS or the validity and reliability of its data." Id. at 7. Nor did the audit attempt to determine the extent of potential fraud. Id. Yet despite the limited scope of the audit, the report concluded that the errors it identified were likely systemic:
16
The policies, procedures, and guidelines used in Miami-Dade County for the IHP were also used throughout the State of Florida, casting doubt about the appropriateness of IHP awards made to individuals and households in other counties of the state as a result of the four hurricanes, particularly those counties that had only marginal damage. Further . . ., most of the procedures were used for disasters in other states making the conditions and recommendations broadly applicable to FEMA's implementation of the IHP nationwide.
17
Id. at 4.
18
The report found "shortcomings" at both "key control points" in the IHP award process — the disaster declaration process and the verification of losses reported by individuals. Id. at 3. Specifically, the report found that FEMA designated Miami-Dade County eligible for IHP assistance without a proper preliminary damage assessment, that claims were not properly verified, that guidelines for making awards were generally lacking, that oversight of inspections was deficient, and that funds disbursed were not based on actual losses. The report concluded that while Miami-Dade "residents obviously sustained some degree of damage," "such damages did not necessarily warrant federal assistance," and "the inclusion of Miami-Dade County in the amended declaration was questionable." Id. at 10-11.
19
The report made sixteen recommendations for improvement. For instance, the report questioned FEMA's use of the Generic Room Concept which, as FEMA itself was forced to admit, almost by definition results in applicants receiving federal funds for items they did not own at the time of the disaster. The report concluded that since this procedure "may permit funding to repair or replace items not damaged or destroyed by a major disaster," it is "inconsistent with the Stafford Act and is potentially wasteful." Id. at 13-14. The report was also critical of FEMA inspectors reporting damage based only on the verbal assurances of applicants. Id. at 15 & n. 19. Similarly, the report found that FEMA inspectors failed to document how vehicle damage and losses were disaster-related, and that the generic replacement amount of $6,500 often far exceeded the blue book value of the car. Id. at 16-17. Finally, the report found that thousands of applicants who received money to be used as rental assistance remained in their allegedly unsafe homes. Id. at 25.
20
Before finalizing its report, the OIG presented FEMA with a draft and allowed FEMA to submit a formal response.5 FEMA's response, signed by Brown, began oddly. FEMA expressed its "gratifi[cation] that the report affirms the absence of widespread or systemic Recovery program fraud, waste or abuse in the state, and conclusively establishes that no special treatment was afforded to Miami-Dade County." Id. at 43.6 As noted, however, the report expressly stated that it had not attempted to determine the extent of fraud, and Skinner himself would later object to this characterization of the audit report.
21
However, FEMA then went on to "take exception to many of the individual conclusions contained" in the report, id., such that the OIG later determined that six of the report's sixteen recommendations were "unresolved," meaning that FEMA and the OIG either did not agree that a problem existed, or disagreed on the proper solution. Generally speaking, FEMA rejected any suggestion that Miami-Dade County should not have been included in the Hurricane Frances declaration, calling the OIG's conclusions to the contrary "inaccurate and misplaced." Id. at 50.
22
Although the strongest sustained winds Miami-Dade County experienced were 47 miles per hour — which, as measured by the Saffir-Simpson scale,7 constitute only tropical storm-force winds — FEMA argued that "the Saffir-Simpson scale is predicated on sustained winds, and does not fully account for the impact of wind gusts that may reach hurricane force, wind-driven rain, and high-velocity tornadic winds that commonly occur in the outer bands of hurricanes." Id. at 49. Moreover, FEMA said, "the affected areas of Miami-Dade County were predominantly low-income neighborhoods that contained much of the State's oldest housing stock, and were not built to more recent State and local building codes." Thus, "homes in Miami-Dade County were far more susceptible to damage." Id.
23
FEMA also objected to the OIG's extrapolation from its Miami-Dade response to conclusions about FEMA's overall disaster relief procedures and policies. "The scope of the audit is extremely narrow (Miami-Dade County), yet the audit's conclusions are overly broad." As a result, FEMA said, "many" of the OIG's "program-wide conclusions . . . are, at best, misleading." Id. at 45. FEMA argued that "the extraordinary nature of the challenging 2004 hurricane season," which involved FEMA working at "several times above our standard operating capacity," made FEMA's response during this time unique, so that "the OIG expectation of error-free execution and a seamless trail of decision-supporting documentation is both unrealistic and inappropriate." Id.
24
At the May 18, 2005 Senate Committee hearings, Director Brown continued to vigorously defend FEMA's response to Hurricane Frances in Florida as well as its general policies and procedures. He reiterated that he "strongly disagree[d] with any objection to the inclusion of Miami-Dade County in the Hurricane Frances declaration," calling the OIG's conclusions to the contrary "inexplicable." See FEMA's Response to the 2004 Florida Hurricanes: A Disaster for Taxpayers?: Hearings Before the S. Comm. on Homeland Sec. & Gov'tl Affairs, 109th Cong. (2005) [hereinafter Senate Hearings]8 (written statement of Brown at 14). And although Brown conceded that "there was some assistance given incorrectly — perhaps through errors in data entry, inspections, and even through fraudulent claims" — he remained "proud of how few errors have surfaced out of the hundreds of thousands of inspections conducted." Id. at 11.9 Brown said it was "clear that many of those early concerns [regarding Miami-Dade County] are misguided," and blamed the media for causing "[p]erspective . . . to have been lost in the public discussion." Id. at 8. He warned that "[m]edia portrayals can be dramatic and compelling, but they can also be inaccurate or incomplete. They should not be considered the only starting point for inquiries or reviews of policies and procedures as they often can be, despite good intentions, misleading, misguided, or flawed." Id. at 12.
25
In July of 2005, the Senate Committee released its preliminary findings, which largely tracked those of the OIG. See Senate Comm. on Homeland Sec. & Governmental Affairs, Senators Collins & Lieberman Release Findings & Recommendations to Improve Safeguards in FEMA's Disaster Relief Program (July 10, 2005) [hereinafter Collins & Lieberman Press Release].10 Like the OIG, the Committee's investigation found "serious shortcomings at key stages of FEMA's program" — specifically, in FEMA's designation of counties as eligible for relief and in its administration of the IHP — that "allowed taxpayer dollars to be wasted." Id. The Committee found fourteen problems in FEMA's administration of the IHP and identified nineteen "[n]ecessary [i]mprovements" to "ensure fairness, accountability, and transparency in the administration of the IHP program." Id. Like the OIG, the Committee concluded that "[b]ecause the policies, procedures, and guidelines used in Florida were for the most part used throughout the nation, we are deeply concerned about the appropriateness of IHP awards nationwide." Id. at 3.
26
By June 28, 2005, FEMA had initiated 6,579 recoupment actions to recover more than $27 million as the result of duplicate payments or overpayments to Floridians during 2004.11
B. Procedural History
27
While the OIG and the Senate Committee investigated FEMA's response to the 2004 Florida hurricanes, various Florida media outlets tried to do the same by requesting various FEMA documents under the FOIA, 5 U.S.C. § 552, which requires that "each [federal] agency, upon any request for records . . . shall make the records promptly available to any person," id. § 552(a)(3)(A), subject to certain statutory exemptions, see id. § 552(b).
28
In News-Press v. United States Department of Homeland Security, No. 2:05-CV-102-FTM-29DNF, 2005 WL 2921952 (M.D.Fla. Nov.4, 2005), three news organizations — The News-Press and Pensacola News Journal, both divisions of Multimedia Holdings Corporation, and Cape Publications, publisher of Florida Today (collectively, "News") — submitted several FOIA requests seeking, in pertinent part: (1) NEMIS data pertaining to IHP awards from the four 2004 Florida hurricanes, including applicants' names and addresses; and (2) spreadsheet data reflecting NFIP claims for the same hurricanes, including addresses of the flooded properties.
29
In Sun-Sentinel Co. v. United States Department of Homeland Security, 431 F.Supp.2d 1258 (S.D.Fla.2006), the South Florida Sun-Sentinel ("Sun") requested, in pertinent part, the same NEMIS data from the four 2004 Florida hurricanes, as well as from 27 additional disasters in various states spanning back to 1998, including hurricanes, tropical storms, tornadoes, and wildfires. In both cases, FEMA released voluminous amounts of responsive data, but withheld nearly 1.3 million IHP applicants' names and addresses and 33,000 NFIP claimants' addresses,12 citing the Privacy Act, 5 U.S.C. § 552a, and FOIA Exemption 6, the combination of which requires agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). After exhausting their administrative appeals, News and Sun sued FEMA and its parent agency, the Department of Homeland Security, in the United States District Courts for the Middle and Southern Districts of Florida, respectively, seeking to compel disclosure of the names and addresses. The newspapers conceded that names and addresses constitute "similar files" for purposes of Exemption 6, so the parties' dispute was limited to whether their disclosure "would constitute a clearly unwarranted invasion of personal privacy." Following oral arguments on the parties' cross motions for summary judgment, each district court rendered its decision.
30
In News, the district court held that disclosure of the names and addresses "would constitute a clearly unwarranted invasion of personal privacy," and thus that this information was properly withheld under Exemption 6. Balancing what it deemed to be "substantial" privacy interests in withholding the names and addresses against "the extent to which disclosure . . . would contribute to the public understanding of the operations and activities of FEMA," News, 2005 WL 2921952, at *18, the court concluded that the former "substantially outweighs" the latter, id. at *19. The court acknowledged the "significant, legitimate public interest in the activities and operations of FEMA, both with regard to the 2004 Florida Hurricanes and generally," and held that "knowing whether FEMA has adequately performed its statutory duties is certainly cognizable under FOIA." Id. at *18. However, the court found that "[d]isclosure of the names and addresses would say little more about FEMA" beyond what was, or could be, known about FEMA from the documents that FEMA had already released. Id.
31
About five months later, the district court in Sun reached nearly the opposite conclusion. Although the court conceded that disclosing the addresses "[c]learly ... raises a substantial privacy interest" by making it possible to link the addresses to the already released personal information, 431 F.Supp.2d at 1268, it nevertheless held that "the release of these addresses . . . is uniquely important under the facts of this case," id. at 1273. The court concluded that "there is a substantial and legitimate public interest in FEMA's handling of disaster assistance in the wake of recent hurricanes," id. at 1269, and that "the addresses will provide critical information that is currently lacking from the public debate," id. at 1270 n. 7. However, the court found that disclosing the names, which the court said would involve the same "significant" privacy interest as disclosing the addresses, would be "clearly unwarranted" because the public interest in the names is only minimal.
32
News appeals the News court's decision that the names and addresses of IHP applicants and the addresses of NFIP claimants in the four 2004 Florida hurricanes were properly withheld under Exemption 6. FEMA, in turn, appeals the Sun court's decision ordering disclosure of the addresses of IHP applicants in the four Florida hurricanes as well as 27 additional disasters nationwide. (Sun does not appeal the district court's decision that the names were properly withheld under Exemption 6.) We consolidated the two appeals.
II. Discussion
A. Standard of Review
33
The parties dispute the proper standard of appellate review in these cases.13 Sun, which succeeded on its relevant claims in the district court, urges this Court to review that entire decision deferentially, for clear error only. Both FEMA and News, by contrast, argue that we must review these cases de novo. In even moderately close cases, the standard of review may be dispositive of an appellate court's decision. And in these cases, where two different district courts reached nearly opposite conclusions, the standard of review would appear to be particularly important: after all, under clear error review, but not de novo review, it would be possible to affirm both courts, yielding the anomalous result that disclosure of the names and addresses would constitute a clearly unwarranted invasion of personal privacy in the Middle District of Florida but not in the Southern District.
34
However, due to a peculiarity of the FOIA, it is largely — although not wholly — irrelevant to the practical outcome of these cases whether we review the district court decisions de novo or for clear error. Even assuming arguendo that clear error review is the proper standard, we would easily affirm the Sun decision under this standard. And once FEMA is required to disclose records to one member of the public, the FOIA requires it to release the same records to any other citizen who requests them. See, e.g., Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ("As a general rule, if the information is subject to disclosure, it belongs to all."). Thus, even if we also affirmed News under clear error review, the plaintiffs in that case could simply rely on the decision in Sun to gain access to nearly all of the information they seek. However, only the IHP addresses are at issue in the Sun appeal, whereas News also seeks the IHP names and the NFIP addresses. Therefore, we cannot avoid deciding the proper standard of review in these cases.
35
This Court has set out two lines of cases governing the standard of review of district court decisions, on summary judgment, in FOIA cases, one providing for clear error review and the other calling for de novo review. In Stephenson v. Internal Revenue Serv., 629 F.2d 1140 (5th Cir. 1980),14 the former Fifth Circuit held in binding precedent that "[a]n appellate court has two duties in reviewing determinations under FOIA. (1) We must determine whether the district court had an adequate factual basis for the decision rendered and (2) whether upon this basis the decision reached was clearly erroneous." Id. at 1144 (footnote omitted); see also Chilivis v. Sec. & Exch. Comm'n, 673 F.2d 1205, 1210 (11th Cir.1982); Currie v. Internal Revenue Serv., 704 F.2d 523, 528 (11th Cir.1983). In each of those cases, there was a factual dispute between the parties as to the very nature of the withheld documents, and thus as to whether they even fell within the applicable exemption. And for the most part, determining the factual nature of the withheld documents was dispositive of those plaintiffs' FOIA claims. We therefore reviewed the district courts' decisions for clear error.
36
In today's cases, by sharp contrast, the parties do not dispute the nature of the withheld information, which all agree consists of names and addresses of IHP applicants and NFIP claimants.15 The parties do not even dispute whether the names and addresses constitute "similar files" for purposes of Exemption 6 — a mixed question of fact and law. In fact, at oral argument, counsel for Sun — the only party that has suggested that the Stephenson standard of review might be applicable here — conceded that there are no factual disputes of any kind in this case.16
37
In Cochran v. United States, 770 F.2d 949 (11th Cir.1985), we squarely held that where, as here, "the facts of the case are undisputed and the only issue is the proper balance under FOIA exemption six, the `clearly erroneous' standard employed in Chilivis and Stephenson is inappropriate." Id. at 956 n. 8 (citations omitted). Although we noted in Cochran that "[w]e need not determine whether the proper standard of review of the district court's application of the balancing test is de novo or abuse of discretion, since it would have no effect on the result in the present case," id. at 955-56 n. 8, the abuse of discretion standard was only potentially at issue in that case because the plaintiff had brought a so-called "reverse FOIA" case under the Privacy Act, 5 U.S.C. § 552a.17 No one argues that abuse of discretion applies to these cases, nor could they.18 Thus, the only remaining standard of review Cochran leaves open is de novo review. Indeed, in Times Publishing Co. v. United States Department of Commerce, 236 F.3d 1286 (11th Cir.2001), we held, in an Exemption 319 case involving "cross-motions for summary judgment in the district court based upon the undisputed record," that "[w]e review the district court's grant of summary judgment de novo." Id. at 1288 & n. 1. Similarly, in Office of the Capital Collateral Counsel v. Department of Justice, 331 F.3d 799 (11th Cir.2003), we again squarely held, citing Cochran and Times, that in an Exemption 6 case, like this one, where the facts were not in dispute, where the plaintiff agreed the information constituted "similar files," and where the issue on appeal was "limited to the legal application of FOIA exemption 6, [that] the Chilivis clear error standard does not apply," and "appellate review is de novo." Id. at 802 & n. 4.20
B. The Privacy Act and the Freedom of Information Act
38
In denying the plaintiffs' requests for names and addresses, FEMA said it was prevented from disclosing that information by both the Privacy Act, 5 U.S.C. § 552a, and by FOIA Exemption 6. The Privacy Act provides that:
39
No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be . . . required under section 552 of this title [the FOIA].
40
5 U.S.C. § 552a(b)(2). The newspapers have admittedly not secured the written permission of the applicants to disclose their names or addresses. Thus, FEMA may not disclose this information unless such disclosure is required by the FOIA.
41
The FOIA, in turn, generally requires federal agencies to disclose records in their possession upon request, see id. § 552(a)(3)(A), but permits agencies to withhold records if one of several exemptions applies, such as Exemption 6's exemption for "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," id. § 552(b)(6). The net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency. Thus, as both district courts correctly held, the dispositive question in these cases is whether disclosure of the names or addresses "would constitute a clearly unwarranted invasion of personal privacy" under FOIA Exemption 6.21 See Cochran, 770 F.2d at 954-55 (explaining the "clearly established" relationship between the Privacy Act and FOIA Exemption 6).
C. The Freedom of Information Act and Exemption 6
42
The FOIA was expressly intended to avoid the pitfalls of its predecessor, § 3 of the Administrative Procedure Act of 1946, Pub.L. No. 79-404, 5 U.S.C. § 1002 (1964) ("APA"). Although § 3 provided that matters of official record be made available to the public, disclosure was subject to several qualifications. Requesters had to show that they were "properly and directly concerned" with the information, and agencies could in any case refuse to disclose records pertaining to "any function of the United States requiring secrecy in the public interest" or which the agency deemed "confidential for good cause found." Nor did § 3 provide a remedy for wrongful withholding of records. As the Senate Report to the FOIA said, § 3 was "full of loopholes which allow agencies to deny legitimate information to the public. It has been shown innumerable times that withheld information is often withheld only to cover up embarrassing mistakes or irregularities and justified by [§ 3's vague exceptions]." S.Rep. No. 88-1219, at 8 (1964). The House similarly commented that "[g]overnment agencies whose mistakes cannot bear public scrutiny have found `good cause' for secrecy." H.R.Rep. No. 89-1497, at 27 (1966), U.S. Code Cong. & Admin. News 1966, pp. 2418, 2423. Thus, § 3 "was generally recognized as falling far short of its disclosure goals and came to be looked upon more as a withholding statute than a disclosure statute." Envtl. Prot. Agency v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) (citing S.Rep. No. 89-813, at 5 (1965); H.R.Rep. No. 89-1497, at 5-6, U.S. Code Cong. & Admin. News 1966, at 2422-23).
43
In supplanting § 3 with the FOIA, Congress created "a broad disclosure statute which evidences a strong public policy in favor of public access to information in the possession of federal agencies." Cochran, 770 F.2d at 954 (quotation marks omitted). "Without question, the Act is broadly conceived. It seeks to permit access to official information long shielded unnecessarily from public view and attempts to create a judicially enforceable public right to secure such information from possibly unwilling official hands." Mink, 410 U.S. at 80, 93 S.Ct. 827. "In enacting the FOIA . . ., Congress sought to open agency action to the light of public scrutiny. Congress did so by requiring agencies to adhere to `a general philosophy of full agency disclosure.'" U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting S.Rep. No. 89-813, at 3) (other quotation marks and citations omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ("FOIA is often explained as a means for citizens to know `what the Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." (citation omitted)). Fittingly, President Johnson signed the FOIA into law on July 4, 1966, and it became effective on July 4, 1967. Like its overall goal of broad disclosure, the specific
44
provisions of the Freedom of Information Act stand in sharp relief against those of § 3. The Act eliminates the "properly and directly concerned" test of access, stating repeatedly that official information shall be made available "to the public," "for public inspection." . . . Aggrieved citizens are given a speedy remedy in district courts, where "the court shall determine the matter de novo and the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(3).
45
Mink, 410 U.S. at 79, 93 S.Ct. 827.
46
However, "Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information," Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982), and provided for certain exceptions to the rule of broad disclosure. Nevertheless, "these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Because the net effect of the FOIA, with its exemptions, is to "`place[] emphasis on the fullest responsible disclosure,'" Mink, 410 U.S. at 80, 93 S.Ct. 827 (quoting S.Rep. No. 89-813, at 3), the Supreme Court has "repeatedly stated that the policy of the Act requires that the disclosure requirements be construed broadly, the exemptions narrowly," Rose, 425 U.S. at 366, 96 S.Ct. 1592 (quotation marks, alteration, and citations omitted); see also Tax Analysts, 492 U.S. at 151, 109 S.Ct. 2841 ("Consistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass."); U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ("FOIA exemptions are to be narrowly construed."); Abramson, 456 U.S. at 630, 102 S.Ct. 2054 (same).
D. Application of Exemption 6 to the Withheld Information
47
We now apply Exemption 6 to each category of withheld information at issue in these appeals — the addresses of the households that received IHP aid, the names of the IHP recipients, and the addresses of households that made flood insurance claims under the NFIP. We do so keeping in mind that FEMA bears the burden of justifying its action whether it withholds entire records or, as here, portions of records. See U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (citing 5 U.S.C. § 552(a)(4)(B)).
1. IHP Addresses
a. Public Interest
48
The Supreme Court has explained that, "as a general rule, when documents are within FOIA's disclosure provisions, citizens should not be required to explain why they seek the information. A person requesting the information needs no pre conceived idea of the uses the data might serve." Favish, 541 U.S. at 172, 124 S.Ct. 1570. "When disclosure touches upon certain areas defined in the exemptions, however, the statute recognizes limitations that compete with the general interest in disclosure, and that, in appropriate cases, can overcome it . . . . To effect this balance and to give practical meaning to the exemption, the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable." Id. Instead, the requester must indicate how disclosing the withheld information "would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quotation marks and emphasis omitted).
49
Here, the newspapers say that the public has a powerful interest in knowing whether FEMA appropriately handled disaster relief claims, and that the addresses where alleged damage occurred are necessary to determine whether aid was in fact disbursed to those who suffered disaster-related damage. We easily conclude, as did both district courts, that the asserted interest in learning whether FEMA is a good steward of (sometimes several billions of) taxpayer dollars in the wake of natural and other disasters is one which goes to "the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." Id. at 495, 114 S.Ct. 1006; see also U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ("[FOIA] focuses on the citizens' right to be informed about what their government is up to. Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." (quotation marks omitted)). Moreover, although courts "generally accord Government records and official conduct a presumption of legitimacy," Ray, 502 U.S. at 179, 112 S.Ct. 541, the newspapers have put forth ample evidence that FEMA's response to Hurricane Frances in Miami-Dade County may have been plagued with fraud, waste, or abuse.
50
The newspapers have identified a substantial public interest cognizable under FOIA that would be served by disclosing the addresses. FEMA now bears the "burden of demonstrating that the disclosure of the [IHP data already released] adequately served the statutory purpose and that the release of the information identifying the particular [IHP addresses] would constitute a clearly unwarranted invasion of . . . privacy." Id. at 175, 112 S.Ct. 541. FEMA says, and the district court in News agreed, that disclosing the addresses would not serve the admittedly legitimate interest of evaluating the adequacy of FEMA's aid disbursement under the IHP. The district court held that "[r]elease of the . . . address[es] will shed little additional light on FEMA's conduct . . . . [D]isclosure of the addresses will say something about FEMA, at least to the extent they reveal the addresses at which physical damage was claimed to have occurred. Nonetheless, . . . this carries little weight in the overall scheme of things in the balancing process." News, 2005 WL 2921952, at *18. The district court held that the most important public benefit to come from the addresses would also "tip[] the scale towards the privacy invasion side." Id. The newspapers indicated that they might have occasion to attempt to contact some of the aid recipients in order to learn more about FEMA's operations. The district court determined that any new information thereby learned about FEMA's disaster response was more than offset by the privacy invasion that would result. Id. at *18-19. We disagree.
51
In focusing on the possibility of learning more about FEMA through aid recipient interviews, the district court gave inadequate weight to the substantial light that would be shed on FEMA's activities directly from the release of the addresses. As the newspapers have explained, they plan to superimpose the path of each of 31 disasters on a street-level map showing the specific households where damage was alleged to have occurred, and where FEMA dollars were disbursed. Any "outliers" — homes outside the path of the disaster that nevertheless received FEMA aid — plainly would raise red flags. It is true that the newspapers have indicated that, depending on their initial findings, they may attempt to contact the residents of some outlier homes. But it is worth noting that, as Acting Inspector General Skinner opined, the inspection data was often so vague and conclusory that in order to verify the appropriateness of an award, the OIG itself was often forced to interview recipients. See Senate Hearings (oral testimony of Skinner at 50).22 In any case, we consider the privacy implications of contacting IHP aid recipients below. For now it is enough to conclude that the red flags raised by the release of the addresses (or the absence of such flags) themselves constitute valuable information.
52
FEMA responds that the addresses are not necessary to determine whether FEMA has been a good steward, for two reasons. First, FEMA says that the OIG and the Senate have already undertaken thorough investigations into FEMA's method of IHP aid disbursement. Second, FEMA says that the IHP data it has already released, broken down by zip code, is sufficient. Neither argument is persuasive.
53
As for the previous investigations, FEMA rejected several of the OIG's findings, and disputed the significance of the OIG audit report. FEMA claimed that the audit "affirms the absence of widespread or systemic Recovery program fraud, waste or abuse in the state, and conclusively establishes that no special treatment was afforded to Miami-Dade County." OIG Audit Report at 43. But Skinner testified that this was "not at all" a fair reflection of the audit's conclusions. Senate Hearings (oral testimony of Skinner at 36). He noted that the audit did indeed reveal "some very serious systemic weaknesses" in the IHP; that "the purpose of the audit was not to identify fraud, waste, and abuse per se"; that the investigation remains ongoing and it was "premature" to conclude that there was no widespread fraud, waste, or abuse; and that much fraud is de minimis and is thus difficult to prosecute. Id. at 36-37.
54
Moreover, in the same breath that it declared that the OIG report "confirm[ed] the fundamental soundness of FEMA's time-tested policies, procedures, and guidelines," OIG Audit Report at 48, FEMA "[took] exception to many of the individual conclusions contained" in the OIG report, id. at 43, and six of the OIG's recommendations remained unresolved. FEMA cannot fairly claim here that the OIG and Senate investigations conclusively determined the extent of FEMA's problems, especially when it vigorously disputed much of those investigations' findings before Congress and in its press releases to the public.
55
But even if FEMA agreed with the OIG and the Senate about the meaning of the findings, the newspapers seek to evaluate FEMA's conduct going well beyond FEMA's response to Hurricane Frances in Miami-Dade County. As the Sun court recognized, and as FEMA itself has emphasized to Congress, "[t]he scope of the OIG audit is extremely narrow." Id. at 45 (emphasis added). Again, that audit was limited to only 3% of IHP aid recipients in one Florida county following one hurricane, and the Senate investigation appears to have largely tracked the scope of the OIG audit. By comparison, News seeks to investigate FEMA's response across Florida for all four 2004 hurricanes, and Sun seeks to investigate an additional 27 disasters. The results of the OIG and Senate investigations thus cannot be said to have resolved the question of whether FEMA appropriately disbursed aid in other areas, following other disasters.
56
Nor can the public simply extrapolate from the OIG and Senate investigations conclusions about the appropriateness of FEMA's disaster response in general. Although both the OIG and the Senate Committee expressed grave concerns that the problems they uncovered in FEMA's Miami-Dade response were not limited to that disaster, FEMA protested that the OIG report reached "overly broad" conclusions based on an "extremely narrow" inquiry, and thus that those conclusions were, "at best, misleading." Id. Brown told the Senate Committee that "[t]he extrapolation of things that were found in Miami-Dade to other areas of the state, particularly areas of the state that were particularly hard hit, I think does draw incorrect . . . conclusions." Senate Hearings (oral testimony of Brown at 65). He explained that in hard-hit areas where damage is severe and thus obvious, the inspectors' job of verifying damage is relatively easy. "It's more difficult for an inspector to make a determination of what has really occurred in those marginal areas . . . . Particularly when you're making those discerning kinds of judgments in housing stock that is old and decrepit, and . . . is certainly substandard." Id.
57
Brown also argued that it would be inappropriate to conclude, from the fact that in Miami-Dade the Generic Room Concept yielded awards for personal property that the recipient never owned, that this method similarly overcompensates victims in other areas. "[I]n most areas, it is safe to assume that in the destroyed home that you see, that is, the typical middle-class home, it's easy to make the assumption that, yes, there is that property in the structure." Id. at 66. After FEMA so vigorously disputed the prior investigations' findings and urged that no extrapolations be made from them, we are not disposed to hear FEMA tell us that these same investigations are sufficient to allow the public to satisfy its interest in knowing whether, in general, FEMA appropriately distributes disaster relief.
58
For similar reasons, we reject FEMA's second argument that the addresses are unnecessary to evaluate FEMA's performance of its statutory duties. FEMA says that the IHP aid disbursement data it has already provided the newspapers, which is broken down by zip code, is sufficient. It is important to recall, however, that Sun requested IHP data not only from hurricanes, tropical storms, and wildfires, but also from tornados, which routinely destroy one home while leaving the home next to it intact. FEMA does not begin to explain why disclosing the zip code in which an IHP recipient resided would be sufficient to assess the appropriateness of that disbursement in such a context.
59
As for IHP data from hurricanes and similar disasters, the newspapers and the district court in Sun say that zip codes, which can cover a large piece of geography in less densely populated areas, are still too indiscriminate an area to allow the newspapers to determine whether it was appropriate for FEMA to have disbursed aid to any given home within a zip code. Indeed, they point out that even in smaller zip codes, houses on one street may be damaged — say because they border a river and suffer flood damage — while houses on the next street over may suffer little or no damage. They find support for these contentions from an unlikely source: FEMA itself. When the media first began raising questions about the appropriateness of FEMA aid to Miami-Dade County, since the path of the storm fell some 100 miles to the north, top FEMA officials criticized the media, and emphasized that the existence of damage cannot always be inferred from the path and strength of the storm, but that each home must instead be evaluated independently.
60
Thus, for example, FEMA Director of Recovery Daniel Craig issued a press release stressing that the appropriate amount of aid can be assessed only on a home-by-home basis:
61
While each application is subject to the same eligibility criteria, it's important to caution against making comparisons of damage assistance provided across individuals, communities or counties. There are many factors that determine whether a citizen is eligible for FEMA assistance, and two homes next to each other may have different eligibility because of these factors. Did they have insurance? Were they under-insured? Was there wind damage or flood damage? Did the roof leak or basement flood? Is the applicant a renter or homeowner? Do they live in a mobile home? Is it a primary residence? Did the applicant lose electricity? Do they have special medical needs? All of these factors make a difference. In a disaster, every state, every county and every home is different.
62
Prepared Statement from FEMA Director of Recovery Daniel Craig Regarding Florida Disaster Assistance 2 (Jan. 10, 2005) (emphasis added). Brown similarly specifically blamed the existence of "faulty results and incorrect conclusions" on
63
[e]arly press reports that engaged in county-by-county comparisons of total outlays . . . . In addition to levels of damage, many factors influence the distribution of IHP assistance, including the population, the proportion of insured applicants in counties affected by disasters, and income levels . . . .[S]trict comparisons of totals between counties, as opposed to individuals, does not take into consideration the multitude of other factors, such as insurance and income levels, which can preclude registrants from receiving FEMA aid.
64
Senate Hearings (written statement of Brown at 8-9) (emphasis added).
65
Similarly, when the Senate Committee questioned Brown about his decision to require inspection companies to perform twice the number of daily inspections as they were required to perform under their contract, thus forcing those companies to hire new, untrained inspectors, Brown defended that decision this way:
66
I can do one of two things. I can either stop all inspections, such as was done in the 1994 Northridge earthquake, and just pay money out based on zip codes, or I can ramp up, work with the contractors, do everything I can trying to be a good steward of the taxpayer dollars and get eyes on every claim. My objective was to get eyes on every claim made, and not pay things out by zip code. So when you're doing 885,000 inspections, there are going to be errors. I want to clean those up. But I still believe I made the right decision in terms of the taxpayers and the disaster victims of continuing to get aid out to them, but not do it on a blanket basis, like was done in 1994, or a zip code basis.
67
Id. at 78 (emphasis added). "Again," Brown reiterated, "the choice was ramp up the inspections, try to get as many out there so I've got eyes on every claim, or just do the blanket zip code. I refuse to do the latter." Id. at 81-82 (emphasis added). The Committee "agree[d] with [Brown] that [he] made the right decision in not doing the zip code approach." Id. at 82 (statement of Sen. Collins).
68
If it would not constitute good steward-ship of taxpayer dollars simply to make decisions about disaster aid based on zip code, then neither can zip codes be seen as an altogether accurate or complete way for the public to evaluate FEMA's distribution of aid. We note also that in Sun, the district court asked whether it would satisfy Sun's needs if FEMA provided the locations by something more specific than a zip code but less specific than a street address — say, a nine-digit zip code, which essentially narrows down a location by street, though not by house. Sun's counsel responded that she believed that FEMA was incapable of breaking down the information by anything other than zip codes or street addresses. If this was incorrect, FEMA's counsel did not correct the record. See Sun, Tr. at 52. Given FEMA's own vigorous arguments regarding the inappropriateness of making aid decisions by zip code and the need to consider individual, house-by-house factors, we conclude that faced with a choice of disclosing the aid information by zip code or by street address, the latter must prevail.
69
In short, the public interest in determining whether FEMA has been a proper steward of billions of taxpayer dollars is undeniable and powerful. FEMA's responses to the various investigations of its disbursement in Miami-Dade county following Hurricane Frances have produced more questions than answers. The addresses, however, will go a long way in resolving the factual disputes that exist between FEMA, on the one hand, and the OIG and the Senate Committee, on the other. Thus, we readily find that the addresses would further a powerful public interest.
b. Privacy Interests
70
Having concluded that the addresses would serve a substantial and legitimate public interest cognizable under the FOIA, we turn to the countervailing privacy interests that FEMA has identified to determine whether FEMA has met its burden of demonstrating that these privacy interests are so weighty that, despite the substantial public interest involved, disclosing the addresses "would constitute a clearly unwarranted invasion of personal privacy."
71
"Congress'[s] primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982) (emphasis added). "[I]t is quite clear from the committee reports that the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters in such files as those maintained by the Department of Health, Education, and Welfare, the Selective Service, and the Veterans' Administration." Rose, 425 U.S. at 375 n. 14, 96 S.Ct. 1592 (citing S.Rep. No. 89-813, at 9 (1965); H.R.Rep. No. 89-1497, at 11 (1966), U.S. Code Cong. & Admin. News 1966, at 2428) (emphasis added) (partially quoted in Wash. Post Co., 456 U.S. at 599, 102 S.Ct. 1957).
72
To achieve this end, Congress established, in Exemption 6, the following two-tier test: "personal information in government agency files is exempt from mandatory disclosure only if: (1) the information was within personnel, medical, or similar files; and (2) a balancing of individual privacy interests against the public interest in disclosure reveals that disclosure of the information" would constitute a clearly unwarranted invasion of personal privacy. Cochran, 770 F.2d at 955. The Supreme Court has made clear that "similar files" has a "broad, rather than a narrow, meaning," Wash. Post Co., 456 U.S. at 600, 102 S.Ct. 1957, and includes any "detailed Government records on an individual which can be identified as applying to that individual," id. at 602, 102 S.Ct. 1957 (quoting H.R.Rep. No. 89-1497, at 11, U.S. Code Cong. & Admin. News 1966, at 2428). The records at issue here fall within this broad definition, as the newspapers have conceded.
73
Instead, the crux of Exemption 6 is its second prong, which asks whether disclosure "would constitute a clearly unwarranted invasion of personal privacy." See id. at 600; S.Rep. No. 89-813, at 9 ("[T]he scope of the exemption is held within bounds by the use of the limitation of `a clearly unwarranted invasion of personal privacy.'"); H.R.Rep. No. 89-1497, at 11, U.S. Code Cong. & Admin. News 1966, at 2425 (same). Courts reviewing the legislative history of the FOIA have concluded that Congress's use of the "clearly unwarranted" language "was a considered and significant determination," Rose, 425 U.S. at 378 n. 16, 96 S.Ct. 1592, and "the expression of a carefully considered congressional policy favoring disclosure," Getman v. NLRB, 450 F.2d 670, 674 n. 11 (D.C.Cir. 1971). In fact, during hearings on the bill, various agencies strenuously urged deletion of either the modifier "clearly" or the entire phrase "clearly unwarranted," so that agencies would have been permitted to withhold information whenever its disclosure would result in any invasion of privacy. See Hearings on S. 1160 Before the Subcomm. on Admin. Practice & Procedure of the Senate Comm. on the Judiciary, 89th Cong. 36 (1965) (statement of Edwin Rains, Assistant Gen. Counsel, Treasury Dep't); id. at 491 (statement of William Feldesman, NLRB Solicitor); Hearings on H.R. 5012 before a Subcomm. of the House Comm. on Gov't Operations, 89th Cong. 56, 230 (1965) (statement of Fred Burton Smith, Acting Gen. Counsel, Treasury Dep't); id. at 257 (testimony of William Feldesman, NLRB Solicitor); see also Hearings on S. 1160, at 417 (testimony of the Gen. Counsel, Dep't of Def.) (objecting to "heavy" burden of showing a clearly unwarranted invasion of personal privacy); cf. Hearings on H.R. 5012, at 151 (testimony of Clark R. Molenhoff, Vice Chairman, Sigma Delta Chi Comm. for Advancement of Freedom of Info.) (urging retention of "clearly unwarranted"). As the Supreme Court noted, however, "[t]he terms objected to were nevertheless retained, as a `proper balance,' H.R.Rep. No. 1497, p. 11, U.S. Code Cong. & Admin. News 1966, at 2428, to keep the `scope of the exemption . . . within bounds,' S.Rep. No. 813, p. 9." Rose, 425 U.S. at 378 n. 16, 96 S.Ct. 1592.
74
Moreover, this legislative history "stands in marked contrast" to the record surrounding Exemption 7(C), which covers investigatory files compiled for law enforcement purposes. Id. As the Supreme Court has explained, Exemption 7(C) was once drafted to match Exemption 6: agencies had to show that disclosure of law enforcement records "would" constitute a "clearly, unwarranted" invasion of personal privacy:
75
Exemption 7 was amended to exempt investigatory files compiled for law enforcement purposes only to the extent that their production would "constitute a clearly unwarranted invasion of personal privacy" or meet one of several other conditions. In response to a Presidential request to delete "clearly unwarranted" from the amendment in the interests of personal privacy, the Conference Committee dropped the "clearly," and the bill was enacted as reported by the conference committee.
76
Id. (citations omitted). On October 27, 1986, Exemption 7 was again amended as part of the bipartisan Anti-Drug Abuse Act of 1986. Congress further reduced the burden on agencies withholding records under this exemption by replacing the onerous requirement that they show that disclosure "would" constitute an unwarranted invasion of personal privacy with the far lesser burden of showing that disclosure "could reasonably be expected to" do so. These two differences between the exemptions, and Exemption 6's comparative narrowness, are thus "no mere accident in drafting." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 165-66, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004); see also U.S. Dep't of Justice v. Reporters' Comm. for Freedom of the Press, 489 U.S. 749, 756 n. 9, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ("[T]he move from the `would constitute' standard to the `could reasonably be expected to constitute' standard represents a considered congressional effort `to ease considerably a Federal law enforcement agency's burden in invoking [Exemption 7].'" (quoting 132 Cong. Rec. 31425 (1986))). What Congress was willing to yield with respect to Exemption 7 it has steadfastly refused to yield as to Exemption 6.
77
The federal courts, including this one, have therefore generally concluded that an agency's burden under Exemption 6 of showing that disclosure "would constitute a clearly unwarranted invasion of personal privacy" is an onerous one. See, e.g., Cochran, 770 F.2d at 955 ("If the balance [between an individual's right to privacy and the public's right to know] is equal the court should tilt the balance in favor of disclosure."); Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91 (D.C.Cir.1984) (Exemption 6's language "require[s] a balance tilted emphatically in favor of disclosure"); Kurzon v. Dep't of Health & Human Servs., 649 F.2d 65, 67 (1st Cir.1981) ("By restricting the reach of exemption 6 to cases where the invasion of privacy . . . is not only unwarranted but clearly so, Congress has erected an imposing barrier to nondisclosure under this exemption." (citing K. Davis, Administrative Law Treatise § 5:38 (2d ed.1978))).
78
The district court in News held that disclosure of the addresses where disaster damage was alleged to have occurred "would constitute a clearly unwarranted invasion of personal privacy." We remain unpersuaded. As a threshold matter, the legislative histories behind the FOIA and the Privacy Act show that Congress did not intend either names or addresses to automatically be withheld, even when they could be linked with other information about those individuals. Between 1973 and 1977, numerous bills were introduced that would have amended the FOIA (or established an independent law) by either prohibiting or limiting the sale or distribution by federal agencies of lists of names and addresses, including names and addresses of individuals registered with, or required to provide information to, an agency. Agencies would have been permitted to release such lists only if specifically authorized to do so by statute or by their statutory function, or if the recipient certified that it would not use the list for commercial or other solicitation. See H.R.s 855, 889, 1779, 2578, 3995, 4468, 5434, 6838, 6839, 6840, and 8086, 93d Cong. (1973); H.R. 12558, 93d Cong. (1974); H.R.s 662, 721, 869, and 1464, 94th Cong. (1975); H.R. 1048, 95th Cong. (1977). None of these bills survived committee. Moreover, the Privacy Act prohibits federal agencies from selling or renting an individual's name and address, but specifically cautions that this provision "shall not be construed to require the withholding of names and addresses otherwise permitted to be made public." 5 U.S.C. § 552a(n).
79
Similarly, the federal courts have held that while names and addresses qualify as potentially protectable "similar files" under Exemption 6, the release of a list of names and other identifying information does not inherently and always constitute a "clearly unwarranted" invasion of personal privacy. Instead, "whether disclosure of a list of names is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue." Ray, 502 U.S. at 176 n. 12, 112 S.Ct. 541 (internal quotation marks omitted).
80
The district court in News gave five reasons why the disclosure of these particular addresses would be clearly unwarranted. First, the court observed that release of the addresses "will enable others to link the great deal of highly personal information already disclosed by FEMA to particular individuals." 2005 WL 2921952, at *16. As both district courts accurately acknowledged, once addresses are disclosed, it would be fairly simple for anyone so inclined to determine, through public records, the residents of those addresses at the time of the disasters. Those individuals could then be linked to the information FEMA has already disclosed about their IHP awards.
81
This makes it important to understand precisely what information FEMA has already released about IHP applicants that could be linked to them if their addresses are disclosed. In News, FEMA introduced into the record five pages of NEMIS data constituting what FEMA referred to as a "representative sample" of the IHP information FEMA has already released. For each entry, the spreadsheet includes the following fields: a disaster number assigned to the relevant hurricane or other disaster; a nine-digit registration ID assigned to the applicant; damage type, which in the sample was either "Hail/Rain/ Wind Driven Rain," "Tornado/Wind," or, in one case, "Other"; item description, which in each case in the sample was "Clothing"; and item quantity, which ranged in the sample from one to seven. There is also a category that appears to indicate the level of damage of each item, which in every case in the sample was "Replace." Another category appears to indicate whether each item was covered by insurance; in the sample, the ratio was about seven "Uninsured" items to every "Insured" item of clothing. A final category apparently indicates the amount of the FEMA award for that item; each item23 of clothing in the representative sample was assigned a generic amount — either $822.23, $822.70, $833.5, $844.81 or $853.99 — and those found to have had multiple items of clothing damaged received multiples of one of these amounts.
82
FEMA says that it provided News and Sun with NEMIS data broken down by individual applicant, including disaster number and registration ID, as well as the following inspection information: line item description, quantity recorded, insurance status for line item, damage level, item amount, and damage type. These categories seem to be reflected in the "representative sample" FEMA submitted into evidence. However, FEMA says that it released the following additional information about each IHP recipient: zip code, county, category of assistance, assistance status, assistance type, assistance status detail, eligibility date, approved date, eligible amount, determination type, and ownership status. And FEMA says that it released the following additional inspection information: Small Business Loan ("SBA") status,24 water level, cause of damage, personal property description, clothing, miscellaneous item description, generic room, essential tool item description, and real property damage item description.
83
Assuming FEMA did release this greater number of categories of data, the only categories that bear any remote resemblance to information one might find in a medical or personnel record are "SBA status," "ownership status" (presumably referring to whether the IHP recipient owns or rents her home), and "insurance status for line item." We discuss the implications of this information below, in our consideration of stigma. For now, it is enough to observe that there is no evidence in the record to support the proposition, suggested in FEMA's briefs, that detailed descriptions of applicants' personal property have been released. As the newspapers have pointed out, because FEMA awards money for repair and replacement of damaged personal property based on predetermined, generic amounts, as the sample data indicates, property is described in the broadest and most generic of terms — "clothing," not "Gucci heels" or "Keds"; "television," not "high definition plasma" or "black and white set from 1974" — and is assigned an equally generic monetary value that cannot indicate anything about the specific kind or quality of property the IHP recipient once possessed. Indeed, counsel for FEMA conceded as much at oral argument.
84
Second, the district court in News held that the individuals would suffer "public embarrassment or stigma" as recipients of government assistance. Id. at *16. But, as FEMA's counsel conceded at oral argument, there is no "means test" for receiving IHP aid from FEMA. That is, unlike many government benefits programs, such as welfare, Medicaid, and unemployment, one need not fall below a certain annual income level to qualify for disaster assistance. Indeed, outside the context of this litigation, FEMA has gone to some lengths to disabuse citizens of the notion that FEMA aid is a type of welfare. See, e.g., FEMA, Common Misunderstandings May Cause Some Victims To Miss Disaster Assistance (Sept. 27, 2004) [hereinafter Common Misunderstandings Press Release] (It is "[n]ot [t]rue" that applicants "have to be poor to qualify for disaster assistance . . . . Federal and state disaster assistance programs may be available to those who suffered damage, regardless of income. The programs are not `welfare.' The kinds of help provided depend on the applicant's circumstances and unmet disaster-related needs.").25
85
However, both an IHP applicant's insurance status and her SBA status may be relevant, although not dispositive, in determining whether she will receive funds from FEMA. As for SBA status, it does not appear that this status is expressly indicated in the NEMIS data. Instead, FEMA argues that since IHP recipients must necessarily have been turned down for an SBA loan, identification as an IHP recipient is tantamount to identification as having been turned down for an SBA loan which, in turn, suggests the individual is poor or has bad credit. Our response to this argument is twofold. First, those applying for Housing Assistance ("HA") under the IHP need not apply for an SBA loan, and it is a violation of the Stafford Act, 42 U.S.C. 5174(a)(2), for FEMA to require otherwise. See McWaters v. FEMA, 408 F.Supp.2d 221, 232 (E.D.La. 2005) (finding that FEMA, through "miscommunication or inartful communication," caused some applicants to believe that an SBA loan application is a necessary prerequisite to receiving any HA aid and granting a preliminary injunction preventing FEMA from continuing to communicate the same); McWaters v. FEMA, 436 F.Supp.2d 802 (making preliminary injunction permanent upon finding that FEMA violated the court's prior order by issuing a February 13, 2006 press release with the "confusing and incorrect" headline "SBA Loan Application Necessary for Assistance").26
86
Second, while it is true that an Other Needs Assistance ("ONA") applicant must first apply for an SBA loan, the applicant will be eligible for IHP aid either if she is denied an SBA loan or if she claims that that loan does not meet all of her covered needs and expenses. See 44 C.F.R. § 206.119(a). Even in the former case, FEMA has elsewhere stressed that being turned down for an SBA loan is not tantamount to being turned down for a regular bank loan. According to FEMA, it is "[n]ot [t]rue" that applicants "have to be turned down by [their] bank before [they] can apply for a disaster loan," as the SBA "has its own criteria for determining each loan applicant's eligibility." Common Misunderstandings Press Release. Because a recipient of ONA may have been denied an SBA loan or may simply have represented to FEMA (accurately or not) that such a loan was insufficient to cover her needs, being identified as an ONA aid recipient is not tantamount to being identified as one who was turned down for an SBA loan, much less one who was turned down for a regular bank loan.
87
As for insurance, FEMA's regulations allow insured individuals to receive IHP aid if their claim is denied or if the insurance proceeds are less than the maximum amount of assistance FEMA can provide27 and are insufficient to meet the applicant's covered needs.28 See 44 C.F.R. § 206.113(a)(2), (4). Insured individuals may also receive IHP aid if their insurance proceeds are delayed, subject to the individual's obligation to repay such aid if she later receives it from her insurance company. See id. § 206.113(a)(3). In fact, in response to the OIG's finding that insured applicants were awarded financial assistance even in cases where FEMA regulations prohibited it, see OIG Audit Report at 23-24, FEMA said that "over 20 years of experience in previous disasters" suggested "that these multiple, back-to-back storms would cause additional delays in aid delivery to the public, not just from FEMA and other Federal agencies, but also from State and local authorities, private insurers, and voluntary agencies," id. at 46. Thus, FEMA said, in providing IHP aid to insured applicants, it had simply responded to "credible indications that area residents were likely to face assistance delays due to multiple, back-to-back storms, delayed insurance settlements, and the limited number of insurance adjusters and available building contractors." Id. at 55-56. Indeed, FEMA has elsewhere highlighted that insured individuals are eligible for FEMA assistance: "Insurance is your main source for money to put your life back in order after a disaster. But there are many things that insurance does not cover. That is where federal disaster programs may be able to help." Common Misunderstandings Press Release.
88
If the addresses are released, some IHP recipients may be identifiable as having lacked insurance to cover a specific damaged item, such as clothing. And although the record is not clear, it also appears that some individuals may be identifiable as home renters rather than owners. We acknowledge that some IHP recipients may feel some stigma if these facts become known to others.29 However, the "[l]egislative history of [Exemption 6] disfavors privacy claims by those who receive a governmental benefit." 2 James T. O'Reilly, Federal Information Disclosure § 16:53 (3d ed.2000). The Senate Report accompanying the FOIA expressly stated that "health, welfare, and selective service records are highly personal to the person involved, yet facts concerning the award of a pension or benefit should be disclosed to the public." S.Rep. No. 89-813, at 9 (1965) (emphasis added). The House Report similarly observed that Exemption 6 was "intended to cover detailed Government records on an individual which can be identified as applying to that individual and not the facts concerning the award of a pension or benefit or the compilation of unidentified statistical information from personal records." H.R.Rep. No. 89-1497, at 11, U.S. Code Cong. & Admin. News 1966, at 2428 (1966) (emphasis added). Although the House Report also said that "[t]he public has a need to know, for example, the details of an agency opinion or statement of policy on an income tax matter, but there is no need to identify the individuals involved in a tax matter if the identification has no bearing or effect on the general public," id. at 8 (emphasis added), these addresses do have a bearing — and a crucial one at that — on the public's ability to assess FEMA's performance of its statutory duties. Cf. Reporters' Comm., 489 U.S. at 773-74, 109 S.Ct. 1468 ("The deletions were unquestionably appropriate because the names of the particular cadets were irrelevant to the inquiry into the way the Air Force Academy administered its Honor Code; leaving the identifying material in the summaries would therefore have been a `clearly unwarranted' invasion of individual privacy." (discussing Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11)).
89
In any case, FEMA's counsel conceded at oral argument that it is "essentially right" that the already-released IHP data does not even remotely resemble the kind of information Congress intended Exemption 6 to protect — that is, "personal information" whose release would cause "injury and embarrassment." Wash. Post Co., 456 U.S. at 599, 102 S.Ct. 1957. Indeed, counsel for FEMA conceded that FEMA does not regard stigma as a "crucial" factor on the privacy side of the calculus at all.
90
Third, the district court in News determined that disclosure would create "a reasonable danger of identity theft, not to mention actual theft." 2005 WL 2921952, at *17. As we noted earlier, however, there is no evidence whatsoever in the record to support this conclusion as to identity theft, as FEMA's counsel has conceded.
91
As for "actual theft," the district court worried that if thieves knew that residents of a certain address received a generic amount of money to replace, say, a television, they would find these locations profitable to burgle. But, IHP aid recipients are not required to spend money they receive replacing a particular item; they may well invest that money elsewhere or simply put it in the bank. Moreover, it has been several years since these individuals applied for FEMA aid; the 2004 Florida hurricane season is nearly three years old, and some of the other disasters implicated in Sun's FOIA request are nearly ten years old. The "new" items the News court was concerned about are almost certainly no longer tempting to thieves, if they ever were. In short, we think that thieves will not find the IHP addresses to be useful at all.
92
Fourth, the court held that News's intention to make direct contact with at least some recipients "magnifies the importance of the personal privacy interest at stake" by rendering the individuals "the target of unsolicited and perhaps unwanted contact." Id. However, individuals are under no obligation to speak to reporters, and on balance, the modest annoyance of a "no comment" is simply the price we pay for living in a society marked by freedom of information laws, freedom of the press, and publicly-funded disaster assistance.
93
FEMA also argues that IHP recipients had a reasonable expectation of privacy in the information they provided to the agency, since they are provided with "FEMA's privacy policy, which explains that the Privacy Act governs the disclosure of individually identifiable information of this sort." In the first place, FEMA does not have the power to promise that it will not disclose that which the FOIA requires it to disclose. But in fact, FEMA's privacy policy30 cautions that an applicant's information "may be shared with [her] bank, insurance company, or other assistance providers to ensure there is no duplication of benefits," as well as with "state and local governmental agencies to help reduce future disaster losses," and nowhere promises that FEMA will not disclose this information to still other sources. Moreover, the policy refers applicants to FEMA's Individual Assistance Privacy Impact Assessment,31 which states (at page 2) that the individual assistance data is subject to a variety of "legal requirements," including the FOIA. Finally, as FEMA's Privacy Impact Assessment for the EP & R/FEMA Privacy Act "Disaster Recovery Assistance Files" System of Records32 indicates (at § 2.1), "[i]ndividuals always have the right not to apply for Federal disaster assistance."
94
Finally, the district court in News held that since FEMA must make available to any requestor what it makes available to the newspapers, disclosure would allow "commercial advertisers or solicitors" to bother the disaster victims with offers of "special goods, services, and causes likely to appeal to" them. Id. Again, because it has been several years since the disasters, it seems unlikely that building contractors and the like would find soliciting these individuals very profitable, and there is no record evidence to support this supposition. In any case, to the extent that IHP aid recipients experience slightly more commercial solicitation than the average American, this, too, is a modest intrusion, at most.33
95
In order to affirm withholding the addresses, we would have to find that the privacy interests against disclosure are greater than the public interest in disclosure. See Cochran, 770 F.2d at 955 ("If the balance is equal the court should tilt the balance in favor of disclosure."). This we cannot do. Quite simply, the disclosure of the addresses serves a powerful public interest, and the privacy interests extant cannot be said even to rival this public interest, let alone exceed it, so that disclosure would constitute a "clearly unwarranted" invasion of personal privacy. On this record we do not find the balancing calculus to be particularly hard.
2. Names of IHP Award Recipients
96
News also appeals the district court's decision not to require FEMA to disclose the names of IHP aid recipients. Although we conclude that FEMA must disclose the addresses where damage was alleged to have occurred, disclosure of the names of the IHP recipients "would constitute a clearly unwarranted invasion" of those individuals' personal privacy. The newspapers articulate only one central need for the IHP names. Of the several indictments involving Floridians who allegedly defrauded FEMA following the 2004 hurricane season, at least three involve individuals who allegedly applied for IHP aid using someone else's address. Because those homes did suffer damage, knowing that aid was disbursed there would not suggest fraud. But if the recipients' names were also disclosed, then News theoretically could use public records to cross-reference those names with the disaster addresses to determine whether those individuals had any legitimate connection to that property, or whether they instead defrauded FEMA.
97
As the Sun court noted, withholding the names would "substantially reduce[]" the potential for negative secondary effects of disclosing the addresses. Although we have previously acknowledged that it is possible to derive names from addresses through public records, we see no reason to enable this process with a ready-made list of names, absent some compelling public interest. And we cannot say that the public interest News has articulated is terribly strong. As the district court in Sun explained, "[w]hereas the addresses go[] to the heart of whether FEMA improperly disbursed funds to property that sustained no damage, the names of disaster claimants are not as probative. In [the vast majority of] cases where the name and address[] accurately reflect the property where the disaster claimant resides, the name of the disaster claimant would provide no further insight into the operations of FEMA." 431 F.Supp.2d at 1271. As for those cases, presumably relatively few, where a recipient provided someone else's disaster-struck address, the recipient's name would say more about her actions than FEMA's. In any case, the names are not necessary to determine the extent of fraud against FEMA: News can contact the legitimate residents of the homes where FEMA aid went to confirm that they did, in fact, apply for and receive aid. Accordingly, we conclude that the convenience to News of a ready list of names from which to research the extent of fraud against FEMA is outweighed by the increased privacy risks to those individuals of having the same ready list of names and addresses available to commercial solicitors, members of the press seeking quotes, and others, and that disclosure of the IHP recipients' names would therefore constitute a clearly unwarranted invasion of personal privacy.
3. Addresses of NFIP Claimants
98
Finally, News appeals the district court's decision not to require FEMA to disclose the addresses of Florida residences that were the subject of NFIP claims in 2004. News claims (and FEMA does not dispute) that one North Miami building has flooded seventeen times but remains eligible for NFIP insurance coverage without increased premiums, and that in general, in two years preceding this lawsuit, the number of NFIP-insured properties that have flooded more than once more than doubled — from 5,844 buildings with $285 million in losses in 2003 to 12,177 properties with $692 million in losses in 2005. News argues that without access to the NFIP addresses, it cannot begin to evaluate this trend and the concomitant cost to taxpayers of the federal government's decision to continue insuring flood-prone property. We agree that this constitutes a substantial public interest, and that the NFIP addresses would serve that purpose.
99
Against this public interest in disclosure we weigh the privacy interests against disclosure. The NFIP addresses have received comparably little attention from the parties. FEMA provided News with spreadsheets entitled "2004 Florida Loss Report by County/Community/Date of Loss" and "Florida Premiums for Policies In Force Report by County/Community" but withheld the addresses of the claimants. No representative sample of this released data is part of the record, and FEMA has not begun to explain why being identifiable as someone who purchased federal flood insurance would constitute any invasion of privacy, much less a clearly unwarranted one. We, therefore, readily conclude that FEMA has failed to meet its burden and must disclose the NFIP addresses.
III. Conclusion
100
The public interest in evaluating the appropriateness of FEMA's response to disasters is not only precisely the kind of public interest that meets the FOIA's core purpose of shedding light on what the government is up to; the magnitude of this public interest is potentially enormous. "The critical nature of [disaster] assistance makes reports of waste, mismanagement and outright fraud particularly disturbing. We cannot sweep such allegations under the rug; we must face them head-on to preserve public confidence in this critical program." Sen. Joseph I. Lieberman, Senators Collins and Lieberman: Investigation Reveals Waste, Mismanagement and Fraud in FEMA's Disaster Aid Program in Miami-Dade (May 18, 2005), available at http://lieberman.senate.gov/newsroom/release.cfm?id=237837. "The tradition of Americans helping Americans in the aftermath of a disaster . . . . will be jeopardized if Americans come to feel their tax dollars are not being spent fairly, efficiently — and with accountability." Senate Hearings (written statement of Sen. Lieberman at 2). Nor is ensuring that FEMA properly spends taxpayer money only of concern to Floridians and residents of other hurricane-ravaged states. As Senator Bill Nelson of Florida told the Senate Committee, it is also of concern "to Californians, who live on fault lines, and Washingtonians, who live in the shadows of active volcanoes; rural Americans, who live near rivers that swell; and city-dwellers, who live in metropolitan areas that could be targeted by terrorists." Senate Hearings (written statement of Sen. Bill Nelson at 2). Although we acknowledge the privacy interests at stake, given the enormous public interest involved, we cannot say that FEMA has come close to meeting its heavy burden of showing that the privacy interests are of such magnitude that disclosure of the IHP and NFIP addresses would constitute a clearly unwarranted invasion of personal privacy under Exemption 6.
101
The judgment of the district court in Sun is AFFIRMED. The judgment of the district court in News is REVERSED and REMANDED for further proceedings consistent with this opinion.
Notes:
1
NEMIS automatically determines eligibility in over 90% of cases based on business rules encoded in its software. FEMA caseworkers determine eligibility in the remaining cases
2
For example, the average kitchen, according to FEMA, consists of 25 items: dinnerware, glassware, and flatware for 8; a set of mixing bowls; a set of pots and pans with lids; a set of dining linens; 4 sets of dish towels/pot holders; a 7-piece knife set; a cooking spoon; a meat fork; a spatula; a whisk; miscellaneous cooking utensils; a dish rack/drainer; a coffee maker; a handheld mixer; a 2-slot toaster; a blender; an electric can opener; a fire extinguisher; a mop and bucket; a broom; a trash can; a 2' × 4' area rug; and a 3' × 4' mini blind set. The average living room consists of 9 items: an upholstered 8' sofa, loveseat, and chair; a coffee table; two end tables; two lamps; a clock; a 5' × 8' area rug; and a 4' × 5' mini blind set. The average bedroom consists of 11 items: two twin beds, standard pillows, sheet sets, blankets and bedspreads; two four-drawer chests; two nightstands; two lamps; an 18" × 48" mirror; a 5' × 8' area rug; and a 4' × 5' mini blind set. The average bathroom consists of 11 items: two towel racks; four sets of personal brushes/combs; four sets of personal hygiene items at $50 each; a shower rod and curtain; a tub mat; a laundry hamper; a toilet paper holder; a storage cabinet; a 3-piece rug set; and a 3' × 4' mini blind set
3
In the days before Frances made landfall, based on its anticipated path, then-Florida Governor Jeb Bush submitted a disaster declaration request to FEMA requesting that all 67 Florida counties be declared eligible for public assistance and that 18 counties, including Miami-Dade, be declared eligible for individual assistance, including IHP aid. President Bush declared Frances a major disaster and authorized FEMA to provide public assistance to all Florida counties, but IHP aid to only five counties,not including Miami-Dade. President Bush did, however, authorize FEMA to designate other counties eligible for IHP aid subject to FEMA's completion of a Preliminary Damage Assessment ("PDA") for such counties. Within 24 hours after the hurricane's impact and without performing a PDA, FEMA amended the declaration to include for IHP eligibility Miami-Dade and the other 12 counties that the Governor had initially requested but that were excluded in the President's declaration. Once a county is declared eligible for IHP relief, any resident of that county may apply for IHP aid.
4
TheOIG Audit Report is available at http:// www.dhs.gov/xoig/assets/mgmtrpts/OIG_05-20_May05.pdf.
5
FEMA's response appears at pages 43-57 of theOIG Audit Report as Appendix H: Management Comments.
6
The same week that FEMA responded to the draft audit report, it issued two public statements. The first, issued by Brown, noted that "Inspector General audits and congressional oversight are not uncommon events in the wake of a major disaster, and while every disaster sadly comes with some level of fraud and abuse, I am pleased by the report's findings verifying our own initial conclusions of nothing widespread."See http://www.fema. gov/news/newsrelease.fema?id=17427. The second was a press release entitled "Hurricane Season 2005: Building on Success," which touted FEMA's response to the "unprecedented" 2004 hurricane season as having involved the delivery of aid "more quickly and more efficiently than ever before," and outlined ways in which techniques that evolved during the 2004 season would be implemented in 2005 and beyond. See http:// www.fema.gov/news/newsrelease.fema?id= 17324.
7
"The Saffir-Simpson Hurricane Scale is a 1-5 rating based on the hurricane's present intensity. This is used to give an estimate of the potential property damage and flooding expected along the coast from a hurricane landfall. Wind speed is the determining factor in the scale, as storm surge values are highly dependent on the slope of the continental shelf in the landfall region. . . .[A]ll winds are [measured] using the U.S. 1-minute average."OIG Audit Report at 32. A tropical storm involves winds ranging from 39 mph to 73 mph. A category I hurricane involves winds from 74 mph to 95 mph. Id. at 10 n. 10.
8
TheSenate Hearings are available at http:// www.senate.gov/~govt-aff/index.cfm? Fuseaction=Hearings.Detail&HearingID= 235.
9
FEMA's own quality control inspections in Miami-Dade County showed what the Senate Committee called "alarming" error rates of 37% on personal property inspections, 18.5% on unsafe home determinations, 16% on furnishings, 16% on clothing, and 11.5% on willingness to relocate. For instance, the quality control report found instances in which thousands of dollars were paid to recipients whose homes showed no damage; in one case, money was provided to repair a dryer in a home where no dryer existed. Brown, however, defended those rates as "commendable."Senate Hearings (oral testimony of Brown at 74-76).
10
The Committee interviewed over 40 witnesses and reviewed over 50,000 pages of documents related to FEMA's response to the 2004 Florida hurricane seasonSee Collins & Lieberman Press Release, available at http:// www.senate.gov/~govt-aff/index.cfm?Fuse Action=PressReleases.Detail&Affiliation=R& PressRelease_id=1042&Month=7&Year= 2005.
11
In some cases, FEMA payments duplicated payments from private insurance companies, and in other cases FEMA payments duplicated themselves. In still other cases, damage was not disaster-related, applicants received rental assistance to escape habitable homes, applicants had already received assistance from a fellow household member, or applicants received assistance legitimately but were overpaidSee News-Press v. United States Department of Homeland Security, No. 2:05-cv-102-FTM-29DNF (M.D.Fla. Nov. 4, 2005), Decl. of Jeff Cull, R45 ¶¶ 4-5 (describing recoupment data received from FEMA).
12
FEMA says it withheld from News approximately 605,500 IHP names and addresses and 33,000 NFIP addresses related to the four 2004 Florida hurricanesSee News, Def's. Mot. for Summ. J. at 16. FEMA says it withheld from Sun an additional 684,866 names and addresses related to the other 27 disasters. See Sun, Berl Jones Decl. at 3.
13
The FOIA clearly provides that a district court's review of an agency's decision to withhold information is de novo,see 5 U.S.C. § 552(a)(4)(B), but is silent as to the proper standard of appellate review.
14
The Eleventh Circuit, inBonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981.
15
Thus, in both cases, the parties agreed that neither a so-calledVaughn index describing the withheld names and addresses, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973); Ely v. Fed. Bureau of Investigation, 781 F.2d 1487, 1493-94 (11th Cir. 1986), nor an in camera inspection of them was necessary to provide the district court with an adequate factual basis on which to determine the applicability of Exemption 6.
16
The parties agreed that the closest thing to a disputed fact in these cases is theNews court's finding that disclosure of the names or addresses could lead to identity theft. However, counsel for FEMA conceded at oral argument that there is no basis in the record to support this finding, such as evidence that FEMA has already released applicants' social security numbers, mothers' maiden names, or other data which, when paired with the disclosed names or addresses, could predictably lead to identity theft.
17
That is, the plaintiff argued that the agency violated the Privacy Act by releasing personal information about him that, he said, fell within FOIA Exemption 6
18
While courts generally review challenges to agency action for an abuse of discretion, it is clear that where, as here, an action is brought under the FOIA, there can be no question of review for abuse of discretionSee Currie, 704 F.2d at 526-28 (rejecting agency's argument that its decision to withhold tax returns under FOIA Exemption 3 should be reviewed for abuse of discretion under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., where plaintiff had brought an action to compel disclosure under the FOIA).
19
Exemption 3 covers records "specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)
20
To the extent that any of our cases decided afterCochran could be read as suggesting that a district court's balancing of interests under Exemption 6 is reviewed for clear error, see, e.g., O'Kane v. U.S. Customs Serv., 169 F.3d 1308, 1309-10 (11th Cir.1999) (per curiam) (stating that we review a district court's grant of summary judgment de novo but its FOIA "determinations" for clear error, and holding, in that Exemption 6 case, that the district court "did not clearly err in determining that an individual's interest in his or her home address outweighs the `public interest' [plaintiff] asserts"), we are bound by Cochran's plain holding that in such cases, "the `clearly erroneous' standard employed in Chilivis and Stephenson is inappropriate." Cochran, 770 F.2d at 956 n. 8. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir.2000) ("[W]here two prior panel decisions conflict we are bound to follow the oldest one.").
21
The FOIA, 5 U.S.C. § 552, provides that: "(b) This section does not apply to matters that are . . . (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . ."
22
Thus, for example, one applicant received $6,500 to replace a car that the inspector indicated had been destroyed by electrical fire. The inspection report did not indicate how a hurricane could have caused an electrical fire or how the inspector verified the damage. Skinner testified that only by calling the aid recipient did the OIG discover that the car had allegedly been towed prior to the inspection and that the award was based on the owner's verbal representations. "[T]hat was not reflected in the inspector's report. We obtained that information by, in fact, talking to the . . . individual."Senate Hearings (oral testimony of Skinner at 50).
23
Judging from the amounts awarded, we assume that each "item" of clothing was in fact a unit akin to something like a full wardrobe
24
The U.S. Small Business Administration provides low-interest disaster loans to homeowners, renters, and owners of non-farm businesses of any size that sustained uninsured or underinsured damage or loss to real or personal property
25
The press release is available at http:// www.fema.gov/news/newsrelease.fema?id= 14333
26
See www.fema.gov/news/newsrelease.fema?id=23562 (last visited June 18, 2007).
27
Currently $28,200, as adjustedSee 42 U.S.C. § 5174(h); 44 C.F.R. § 206.110(b).
28
According to FEMA's counsel, FEMA's disaster relief program "makes no provision for [insurance] deductibles as such," and FEMA's website says that FEMA does not cover deductibles per seSee Frequently Asked Questions, http://www.fema.gov/assistance/dafaq. shtm# 18. However, the unmet needs of insured individuals are covered, see id., so that if an insured individual still has unpaid losses after her insurance settlement, which she likely would if she had a hefty deductible, then presumably FEMA could pay for those losses.
29
We note, however, that it is highly unlikely that the newspapers will publish a list of many IHP recipients indicating after each name whether a particular individual rents her home, had some uninsured property, or was possibly turned down for an SBA loan. Nevertheless, once the addresses are disclosed, this information would be available for anyone sufficiently disposed to seek it out
30
Available at http://www.fema.gov/help/privacy_registration.shtm.
31
Available at http://www.fema.gov/pdf/help/privacy.pdf.
32
Available at http://www.fema.gov/pdf/help/part_ad.pdf.
33
FEMA also relies on several cases, most of which barred the release of names and addresses under Exemption 6, for the proposition that there is a privacy interest in names and addresses, especially where they are coupled with additional information. We do not deny that a privacy interest against disclosure may exist, although it is not very substantial here, but unlike each of the privacy interests detailed in these cases, the privacy interest here is dwarfed by the powerful public interest in disclosureSee U.S. DOD v. FLRA, 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (public interest is "negligible, at best"); FLRA v. U.S. DOD, 977 F.2d 545, 548 (11th Cir.1992) ("no FOIA-related public interest"); FLRA v. U.S. Dep't of Treasury, 884 F.2d 1446, 1452 (D.C.Cir.1989) (public interest is "only modestly distinguishable" from that in the court's prior decision in Horner, where the public interest was "absolute zero"); Painting & Drywall Work Pres. Fund, Inc. v. Dep't of Hous. & Urban Dev., 936 F.2d 1300, 1303 (D.C.Cir.1991) ("no obvious public interest"); Am. Fed'n of Gov't Employees, Local 1923 v. United States, 712 F.2d 931, 932 (4th Cir.1983) (per curiam) ("[A]ny benefits flowing from disclosure of the [addresses] would inure primarily to the union, in a proprietary sense, rather than to the public at large."); Lepelletier v. FDIC, 164 F.3d 37, 47 (D.C.Cir.1999) ("no clearly discernible public interest"); Forest Guardians v. U.S. FEMA, 410 F.3d 1214, 1219-20 (10th Cir.2005) (declining to quantify the privacy interest in NFIP data where the public interest was "nonexistent"); Comm. on Masonic Homes of R.W. Grand Lodge, F. & A.M. of Pa. v. NLRB, 556 F.2d 214, 221 (3d Cir.1977) ("no significant public interest"); Wine Hobby USA, Inc. v. U.S. IRS, 502 F.2d 133, 137 (3d Cir.1974) ("no direct or indirect public interest"); FLRA v. U.S. DOD, 984 F.2d 370, 375 (10th Cir.1993) ("[E]ven a `minimal' privacy interest in an employee's name and home address outweighs a nonexistent public interest . . . ."); Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 88 (2d Cir.1991) (disclosure "would shed no light on HUD's performance in enforcing the prevailing wage laws"); Sheet Metal Workers Int'l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 998 (10th Cir.1995) (only additional public interest in employee names was "attenuated," since it would be achieved, if at all, derivatively, through direct contact with the employees (quotation marks omitted)); Painting Indus. of Haw. Market Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d 1479, 1485 (9th Cir.1994) (same); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 878-79 (D.C.Cir.1989) (disclosure of names and addresses of individuals on government annuity rolls, indicating that they were either retired or disabled and the recipient of monthly government annuity checks, involves only a "modest" privacy interest, despite expectation of a "barrage of solicitations" by mail, phone, and at home, and disclosure must be barred only because there is "no public interest in" their disclosure); Minnis v. U.S. Dep't of Agric., 737 F.2d 784, 787 (9th Cir.1984) (disclosure "would not further [a cognizable FOIA] objective" and the public interest in disclosure was therefore "negligible"); Heights Cmty. Cong. v. Veterans Admin., 732 F.2d 526, 530, 527 (6th Cir.1984) (district court was not clearly erroneous in barring release of addresses of veterans who received federal loans where community group stated a public interest "in merely `monitoring' the operation of a federal program, without more," to determine if "lenders and realtors [not the government] were manipulating the VA loan program so as to steer white and black veterans into specific areas of" the city, where it was likely that any lender or realtor accused of steering would "interrogat[e]" the veterans and where the community group could instead solicit participation in its investigation from veterans); Aronson v. U.S. Dep't of Hous. & Urban Dev., 822 F.2d 182, 186-88 (1st Cir.1987) (requiring disclosure of names and addresses of individuals "owed a substantial sum of money" by HUD despite an expectation they "may become . . . target[s] for those who would like to secure a share of that sum by means scrupulous or otherwise," where HUD had failed to locate the individuals after one year, such that disclosure would serve the "quite substantial" public interest "in the revelation and consequent correction of an inability of HUD to disburse funds to their rightful owners").
| {
"pile_set_name": "FreeLaw"
} |
29 So.3d 1136 (2010)
MORALES
v.
STATE.
No. 5D10-213.
District Court of Appeal of Florida, Fifth District.
February 23, 2010.
Decision Without Published Opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
125 Ill. App.2d 347 (1970)
261 N.E.2d 323
James Sloma, Plaintiff-Appellee,
v.
Burton E. Pfluger, Viola Carpenter, Administratrix of the Estate of Richard Lee Carpenter, Deceased, Viola Carpenter, Defendants, and L.H. Wood, Individually and d/b/a L.H. Wood Construction Company, Defendant-Appellant.
Gen. No. 69-130.
Illinois Appellate Court Second District.
June 18, 1970.
Rehearing denied September 3, 1970.
*348 *349 *350 *351 Joseph B. Lederleitner, Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellants.
Leonard M. Ring, Peterson, Bogucki & Beck, and John H. Bickley, Jr., of Chicago, for appellee.
MR. PRESIDING JUSTICE DAVIS delivered the opinion of the court.
The plaintiff, James Sloma, brought this suit against the Administratrix of the Estate of Richard Lee Carpenter, to recover damages for personal injuries which the plaintiff suffered on March 29, 1966, while riding in a pickup truck owned and operated by Richard Lee Carpenter. The plaintiff also sought recovery against L.H. Wood, individually and doing business as L.H. Wood Construction Company, the employer of both Carpenter and the plaintiff; and against Burton E. Pfluger, the driver of the other vehicle involved in the accident. Carpenter died as the result of the accident in question.
The trial court severed the issues of liability and damages and ordered that each issue be tried by a separate jury. The first jury found the defendants, Carpenter and Wood, liable, and the defendant, Pfluger, not liable. At a subsequent trial, the jury assessed damages in favor of the plaintiff in the sum of $380,000. At the trial on the issue of liability, the jury answered special interrogatories and found: that Carpenter was guilty of wilful and wanton conduct resulting in the accident; that the plaintiff was free from contributory wilful and wanton misconduct; that Carpenter was within the scope of his employment at the exact time of the accident (approximately 6:45 p.m.); that Carpenter was within the scope of his employment at an earlier *352 time, when he had arrived at a tavern at approximately 3:45 p.m.; and that Carpenter was within the scope of his employment at an earlier time, when he left the tavern in question at approximately 6:30 p.m. A judgment was entered on the jury verdicts, and the employer, Wood, appealed.
Wood contends that there was no probative evidence of the resumption of employment by Carpenter after approximately two and one-half hours of drinking in the tavern, and that he, thus, was entitled to a directed verdict; that the verdict and answers to the interrogatories are against the manifest weight of the evidence; that certain opinion evidence as to the cost of future custodial care for the plaintiff was erroneously admitted, in that there was no evidence of the necessity for such custodial care; and finally, that the verdict of $380,000 is excessive and the result of errors committed in the course of the trial.
Wood was engaged in the business of erecting dry walls as a part of the construction of new buildings. He employed between one hundred fifty and two hundred men, and had four superintendents working for him. His operations encompassed the Chicago metropolitan area, north to Waukegan and west to Rockford. His main office was in Algonquin. The materials that were needed for the jobsites were either delivered to these sites, or kept in supply trailers throughout the area. Wood's superintendents had keys and access to these supply trailers. The materials stored in the trailers were normally delivered to the various jobsites by superintendents, or by employees hired for that purpose.
Carpenter was employed by Wood as a taper. He was a capable worker and his work ranged over a wide area. He required less supervision than many, or most, of Wood's employees. Apparently, Mr. Darnell, his superintendent, merely told him where his job assignments were to be. Carpenter's work relationship was rather *353 unique in that he had his own pickup truck, which he drove to his various jobsites, and in which he carried his supplies and tools. He lived in Carpentersville, and his employer maintained a supply trailer in Meadowdale a shopping center about a mile and a half from Carpenter's home. This trailer was primarily for Carpenter's use, and even though he was not a superintendent, he had a key to this supply trailer. Carpenter's key opened only this supply trailer not the other trailers belonging to Wood. Carpenter was not paid an hourly rate; but rather, was paid on a piecework basis.
The plaintiff was eighteen years old at the time of the accident. He had been employed by Wood for a little over a year, and had been working directly with Carpenter for approximately two months. Carpenter's superintendent, Darnell, testified that he had "given" the plaintiff to Carpenter to use as a laborer-apprentice. The plaintiff was paid an hourly rate and was paid only from the time he arrived at the job until the time he left, and was not paid for any transportation time. He lived about a half a block from Carpenter in Carpentersville, and rode daily to and from the various jobsites with Carpenter, in the latter's pickup truck.
On the day in question, the plaintiff and Carpenter had worked on a job in Belvidere, which they completed. They left the jobsite at about 3:30 p.m., and drove to a tavern in Belvidere where they frequently stopped while working in the Rockford or Belvidere area. On this occasion, they remained in the tavern for about two and one-half hours. During this time, Carpenter had five or six bottles of beer, but the plaintiff had nothing alcoholic to drink. The plaintiff testified that Carpenter's eyes were glassy when they left the tavern at about 6:30 p.m., but that his speech and gait were normal, and that he did not believe Carpenter to be intoxicated. They got into the pickup truck Carpenter driving and proceeded east on U.S. Highway 20. The *354 plaintiff testified that he placed his knees on the dashboard and fell asleep almost immediately.
The accident took place about a mile east of Belvidere, on U.S. Highway 20 a paved two-lane highway at this point. Pfluger was driving a large tractor-trailer truck combination in an easterly direction at the time and place in question, and at the time of the accident was making a left-hand turn into a restaurant driveway, and was, thus, partially in the westbound lane of traffic. Carpenter's pickup truck struck the rear of Pfluger's vehicle. Witnesses estimated that Carpenter's pickup truck was travelling at a speed of from 70 to 90 miles per hour. The pickup truck exploded and burned: Carpenter was killed and the plaintiff severely injured. Visibility was good at this time and place.
The plaintiff testified that when they left the tavern they were then going to Meadowdale to pick up supplies; that they would go to Meadowdale for supplies before Carpenter would take him home because he lived only a half block from Carpenter; and that they intended to pick up supplies that night since they had completed the job in Belvidere and had only four or five bags of supplies left in the pickup truck, and it would take fifteen or twenty bags for the next day's work. It is undisputed that the plaintiff was not paid for any help he might give Carpenter in loading the supplies.
He further testified that, depending upon where they were to be working the following day, they would, at times, pick up supplies at night, to save time the following day; that they normally started work at about 7:00 a.m., and that the plaintiff knew that they were going to be working at either the Whitehall or Woodview jobsites in Prospect Heights the following day. Darnell, the superintendent, testified that he had planned to call Carpenter that evening to advise him that they would be working at Woodview the following morning.
*355 The plaintiff also testified that Carpenter had told him that they were going to Meadowdale to pick up supplies. This testimony was stricken by the court and the jury was advised to disregard it.
We will first consider Wood's contention that he was entitled to a directed verdict on the issue of liability. Wood contends that if, at the time of the accident, the plaintiff and Carpenter were going to pick up supplies, then the plaintiff, too, was in the scope and course of his employment; and that in such event, Wood, the employer, is not liable for the injuries caused by the coemployee, Carpenter.
[1] While Carpenter was on piecework and paid accordingly, the plaintiff was paid by the hour, and only for the time on the jobsite. His duties did not include picking up the supplies for the work to be done. Apparently, Carpenter was the only employee who was authorized and actually expected to pick up his supplies. If the plaintiff aided Carpenter, he did so as a volunteer. The evidence does not support any agreement or understanding between Wood and the plaintiff which could be held to create an obligation on the plaintiff, as part of his employment, to assist Carpenter in the loading of supplies.
The plaintiff obviously had a convenient source of transportation to and from his place of work. Because he lived near Carpenter, it was also convenient to stop for the supplies before dropping the plaintiff off at his home. But, this was a matter between Carpenter and the plaintiff. As for Wood, the employer, it mattered not whether the plaintiff rode with Carpenter, with someone else, or by himself; or if he rode with Carpenter, whether the latter took him home before or after getting the supplies. Apparently, the plaintiff had no concern as to the time when he arrived home, as *356 was evidenced by the customary stop at the tavern on the route home.
[2] The determination of when one ceases to be an employee is often difficult. However, the facts in this case suggest that the plaintiff's scope of employment began and ended at the jobsite; that there was nothing to take him out of the normal rule that travel to and from the place of employment is beyond the realm of the employment relationship; and that one injured in the course of such travel is not injured as an employee. Urban v. Industrial Commission, 34 Ill.2d 159, 161, 214 NE2d 737 (1966); Christian v. Chicago & I.M. Ry. Co., 412 Ill. 171, 175, 105 NE2d 741 (1952).
[3] The trial court left the question of whether the plaintiff occupied the status of a guest of Carpenter or an employee, while riding with Carpenter, for the jury to decide. This was proper under the facts of this case. See: Leonard v. Stone, 381 Ill. 343, 345, 45 NE2d 620 (1943).
[4] The plaintiff, however, had no cause of action against Wood unless Carpenter was still acting within the scope of his employment at the time of the accident. This, it appears from the record, is even a closer question. It is admitted that Carpenter was on a lark of his own for in excess of two and one-half hours while at the tavern. It is equally true, however, that such a deviation from his duties will not, as a matter of law, prevent him from returning to the course of his employment. In Parotto v. Standard Paving Co., 345 Ill. App. 486, 490, 104 NE2d 102 (1952), it was held that a deviation in time of approximately seven hours and, in distance, of some four miles, was not as a matter of law so substantial as to relieve the employer of liability for the employee's tortious acts. In Kavale v. Morton Salt Co., 329 Ill. 445, 160 NE 752 (1928), the court refused to set aside a jury verdict against the *357 employer where the employee's deviation had existed for approximately three hours.
[5] The mere fact that Carpenter was driving his own truck and not one belonging to Wood, is not decisively significant. Unlike most employees, Carpenter brought the supplies needed for a particular day's work to the jobsite, and Wood provided a supply trailer, near Carpenter's home, for his use. Carpenter had a pickup truck so that he could carry these supplies. Ignoring for a moment the personal lark of Carpenter and the question of the effect of the deviation from the course of his employment, inasmuch as he was intending to get his supplies for the next day, he was driving his pickup truck with the implied authority of Wood.
[6] The lack of immediate supervision over Carpenter in picking up his supplies, appeared no less than that exercised over him at the jobsite. Wood knew that Carpenter picked up his own supplies and provided a special trailer for this purpose. Thus, Carpenter's use of his own vehicle for his employer's business was not only with the latter's knowledge and consent, but also with his encouragement. When so driven, it was within the course of Carpenter's employment. Hogan v. City of Chicago, 319 Ill. App. 531, 539, 543-546, 49 NE2d 861 (1943).
[7] Wood insists, however, that there is no evidence that he authorized Carpenter to invite anyone to ride as a "guest" with him. We believe, however, that when an employee is using his own vehicle for his employer's purpose, the same rule prevails with reference to a guest in the vehicle as when the vehicle is employer-owned. The employer may not be held liable under the doctrine of respondeat superior where the employee has taken a guest in the vehicle, contrary to the express instructions of the employer, even though the employee is acting within the scope of his employment. Klatt v. Commonwealth *358 Edison Co., 33 Ill.2d 481, 495, 498, 211 NE2d 720 (1965). Here, however, Wood did not prohibit Carpenter from transporting the plaintiff. In fact, the evidence suggests that Wood, through the superintendent, Darnell, not only knew of the transportation arrangement, but also encouraged it. Wood had the right to advise Carpenter not to permit any guests to ride with him when he obtained supplies for his work, but this prerogative was not exercised. Under these circumstances, Wood may be held liable under the doctrine of respondeat superior.
[8] The critical question is whether or not there was probative evidence that Carpenter had returned from the deviation from the course of his employment and was going to pick up supplies and, thus, was again in the course of his employment. We believe the evidence set forth above relative to Carpenter having a supply trailer for his use, the location of the trailer, the fact that he picked up supplies in the evening as well as in the daytime, the hour he was to start work the next day, the location of the two places where he might work the following day, the number of bags of supplies in the truck, and the number needed for work the following day, constituted sufficient facts for the case to go to the jury. All of the evidence, viewed in the light most favorable to the plaintiff, is not such that the verdict for him cannot stand. Pedrick v. Peoria & E.R. Co., 37 Ill.2d 494, 510, 229 NE2d 504 (1967).
[9] The evidence in this case, particularly on the issue of whether or not Carpenter was acting within the scope of his employment, is somewhat meager. This is to be expected in this type of case where death has sealed the lips of the one who might otherwise have shed the most light on the question. The plaintiff was compelled to tell his story with the best evidence available to him. The jury believed that under the law as given to them by the court the plaintiff was entitled to *359 a verdict. The trial judge, who had an opportunity to hear the testimony and observe the witnesses, denied the defendant a new trial and upheld the verdict of the jury. Mindful of all of this, we are of the opinion that we may not substitute our judgment for that of the jury; the verdict is not palpably erroneous or wholly unwarranted from the manifest weight of the evidence. Johnson v. Central Tile & Terrazzo Co., 59 Ill. App.2d 262, 273, 274, 207 NE2d 160 (1965).
The defendant suggests that our decision in Sauer v. Iskowich, 80 Ill. App.2d 202, 224 NE2d 21 (1967) is indicative that Carpenter had terminated his employment on the day in question, prior to the time of the accident, and could not be found to have returned thereto. But, in Sauer, the employee was not a continuing employee, but one hired only to pick up and return a repossessed car. He did so, leaving it at one of the designated places. When he did that we indicated his job was completed: he no longer was employed. When he returned later and picked up the car, it was entirely for his own frolic and had no connection with the employer's business. We indicated in Sauer, at pages 206 and 207, the types of factors to be considered in deciding whether one is within the scope of his employment. It should be apparent from these, that it is the exceptional case where this determination can be made as a matter of law.
While discussing this aspect of the case, we might make reference in passing to testimony stricken by the court. Wood suggests that this was the only evidence of probative value, and that if the jury disregarded it, there was nothing left on which to base their verdict. Our opinion, of course, is the contrary; and, likewise, we believe that the stricken evidence should have been admitted.
[10, 11] Whether or not Carpenter had returned to his course of employment at the time of the accident *360 depended, to a large extent, on his intent at the time. Did he intend to stop to pick up supplies? If he did, then this intent itself was a factor for the jury's consideration in deciding whether he was again in the course of his employment. The plaintiff testified that Carpenter expressed this intent by saying he was going to pick up the supplies. Whenever intention is itself a distinct and material fact in a chain of circumstances, as it was here, it may be proved by testimony of contemporaneous oral declarations. Quick v. Michigan Millers Mut. Ins. Co., 112 Ill. App.2d 314, 320, 250 NE2d 819 (1969). Thus, where the statement is offered to show only the state of mind of a person at a given time it should be admitted, with appropriate instructions. The testimony of Carpenter's statement to the plaintiff should have been admitted insofar as Wood was concerned.
[12] In this case, the question of whether the plaintiff in accepting the ride with Carpenter after the drinking bout and in falling asleep immediately upon getting into the pickup truck was guilty of wilful and wanton conduct, was clearly a question of fact for the jury's determination. See: Hamas v. Payne, 107 Ill. App.2d 316, 323, 246 NE2d 1 (1969); Dursch v. Fair, 61 Ill. App.2d 273, 285, 209 NE2d 509 (1965); Anderson v. Launer, 13 Ill. App.2d 530, 537, 142 NE2d 838 (1957).
[13, 14] The evidence disclosed that the plaintiff was a considerable distance from his home; that on prior occasions, Carpenter and the plaintiff had stopped at the tavern for Carpenter to have a beer without any apparent problems; that when leaving the tavern, Carpenter's eyes appeared glassy to the plaintiff, but his speech and gait were normal; and that the plaintiff did not think Carpenter was intoxicated. As the above-cited cases indicate, when one person who has accompanied another drinking, then rides with him and *361 even falls asleep leaving the driver alone with his task, it will normally be within the province of the jury under the particular facts of each case, to determine whether the guest was guilty of wilful and wanton conduct in so doing. The jury's determination in this regard was not contrary to the manifest weight of the evidence.
The plaintiff's judgment was in the sum of $380,000. The essential testimony indicated that he had a 100% impairment of the function of his right arm, 50% impairment of the function of his left arm and a 10% impairment of both legs. The plaintiff's mother testified that she cares for him in that he is unable to do a number of ordinary tasks for himself. He suffered second and third degree burns over more than 70% of his body, including his face. He suffered contractures of the hands, wrists, arms and face, a broken nose and ribs. His right hand was paralyzed, and both hands are in a wristdrop position.
At the date of the trial, the plaintiff had spent sixteen months in hospitals, during five separate confinements, had undergone approximately twenty-six operations and could expect eleven more. The medical expenses to date totalled close to $36,000, and future medical expenses would be approximately $10,600. The plaintiff was eighteen years of age at the time of his injury. His loss of earnings present and future expected as testified to by an economist, totalled $318,600. The economist also testified that the cost of custodial care, assuming that the plaintiff's parents could care for him during the balance of their life expectancies, would total $42,900. It would thus appear that the total damages awarded by the jury was not excessive, even if the said sum of $42,900 the alleged cost of such custodial care were excluded.
[15] If the elements of damage presented for the jury's consideration are proper under the facts of the
*362 case, then the assessment of damages is preeminently for the jury. Lau v. West Towns Bus Co., 16 Ill.2d 442, 452, 158 NE2d 63 (1959). No two cases will be identical in reference to the nature of the injuries suffered, but other awards have been upheld as not excessive which are somewhat in line with that made by the jury in this case. See: Kaspar v. Clinton-Jackson Corp., 118 Ill. App.2d 364, 254 NE2d 826 (1969); Hulke v. International Mfg. Co., 14 Ill. App.2d 5, 142 NE2d 717 (1967).
[16, 17] Clearly, the plaintiff was entitled to substantial damages. Reasonable men could be expected to differ as to the amount. Considering all of the factors, the amount of the damages was not so clearly excessive as to require us to disturb the jury's verdict on this ground. Murphy v. Lindahl, 24 Ill. App.2d 461, 472, 165 NE2d 340 (1960).
[18] The defendant argues, however, that the testimony of the economist as to the estimated cost of $50 per week for a daytime maid from the date of the death of the plaintiff's mother based upon her life expectancy to the date of the death of the plaintiff based upon his life expectancy which would total $42,900, was too speculative. Wood argues that there was no adequate evidence that the plaintiff would require such custodial care.
The economist testified as an expert, and gave his estimated cost of custodial care based on the assumption that the plaintiff would need such care. We do not believe that there was sufficient evidence in this record to support the hypothesis that the plaintiff would need such care for the rest of his life. The doctor who testified to the loss of function, particularly in the right arm, stated: "Now, whether that means custodial care to you, I don't know." The evidence disclosed that *363 the plaintiff could be left alone, and without assistance could take care of his personal hygiene, could move about, make a sandwich, and even drive a car. We believe, under these circumstances, that there was an absence of basic and essential facts necessary to support an award for such custodial care, and that the testimony as to the cost of future custodial care was too speculative and conjectural to have any probative value. Abramson v. Levinson, 112 Ill. App.2d 42, 47, 250 NE2d 796 (1969); Marshall v. First American Nat. Bank of Nashville, 91 Ill. App.2d 47, 53, 233 NE2d 430 (1968).
It is impossible for us to tell the extent to which the $42,900 figure for custodial care entered into the final determination of the jury. Obviously, however, this testimony could not have increased the total amount of the verdict more than $42,900.
Under these circumstances, the judgment of the Circuit Court will be affirmed upon the filing by the plaintiff, within thirty days from the finality of this judgment, of his consent to a remittitur of $42,900; otherwise, the judgment is reversed and the cause is remanded for a new trial on the issue of damages only.
Judgment affirmed upon filing of a consent to remittitur within thirty days: otherwise, judgment is reversed and cause is remanded.
ABRAHAMSON and MORAN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
36 S.W.3d 131 (2000)
Douglas Harris AIKEN, Appellant,
v.
The STATE of Texas, Appellee.
No. 03-99-00200-CR.
Court of Appeals of Texas, Austin.
November 9, 2000.
Charles A. Stephens II, Canyon Lake, for Appellant.
Did Waldrip, County and Dist. Atty., New Braunfels, for Appellee.
Justices JONES, PATTERSON and DALLY.[*]
CARL E.F. DALLY, Justice (Retired).
Appellant Douglas Aiken was convicted in a bench trial of the offense of misapplication of fiduciary property. See Tex.Penal Code Ann. § 32.45 (West Supp.2000). The trial court assessed appellant's punishment at confinement in a State jail facility for two years. Imposition of sentence was suspended and appellant was placed on community supervision for five years. Appellant asserts the evidence is legally and factually insufficient to support his conviction. The judgment will be reversed because the evidence is legally insufficient to support appellant's conviction.
*132 Appellant as agent for Provident Contracting, a corporation, and Robert and Billie Ristau executed a contract agreeing that appellant would build a house for the Ristaus on land that they owned. The Ristaus obtained interim financing for the project from the Texas Commerce Bank of New Braunfels. While building the house, appellant requested several draws commensurate with the work completed. After appellant's draws were approved by the Ristaus and after the bank's officers made on-site physical inspections and verified the progress of the project, appellant received the funds requested. In accord with the contract, the bank, on behalf of the owners, retained ten percent of the requested draw. The retained funds were for the protection of the owners and for the benefit of subcontractors and materialmen if they were not paid by appellant. Before the house was completed, appellant notified the Ristaus that Provident Contracting was insolvent and that the company would be unable to finish building the house.
We will first consider appellant's points of error in which he insists that the evidence is legally insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex.Crim.App.1994); Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991); Martinets v. State, 884 S.W.2d 185, 187 (Tex.App.-Austin 1994, no pet.).
The State elected to prosecute appellant under Section 32.45 of the Penal Code.[1]See Tex.Penal Code Ann. § 32.45 That section provides that a person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to the person for whose benefit the property is held. Tex.Penal Code Ann. § 32.45. "Misapply" means to deal with property contrary to an agreement under which the fiduciary holds the property or a law prescribing the disposition of the property. Id. (2)(A), (B) (West Supp. 2000).
The State obtained an indictment that was, without objection, amended to allege that on or about May 25, 1995, appellant did "recklessly deal with $1,500 or more but less than $20,000 in United States currency contrary to an agreement under which the fiduciary held such property in a manner that involved substantial risk of loss to Robert Ristau and Billie Ristau, owners of property, by failing to pay subcontractors and/or materialmen pursuant to his contract with the owners".[2] The elements of the alleged offense are that: (1) appellant, (2) recklessly, (3) dealt with property (money), (4) he held as a fiduciary, (5) in a manner that involved substantial risk of loss, (6) to the owners of the property, (7) by failing to pay subcontractors and materialmen, (8) pursuant to his contractual agreement.
On appeal, as he did at the time of trial, appellant insists that the State did not as a matter of law prove the essential element *133 of the offense that appellant dealt with the owners property in a manner that involved substantial risk of loss. "Substantial risk of loss" is not defined by statute, but the Court of Criminal of Appeals has defined that element of the offense as a "real possibility," a "positive possibility," or "at least, more likely than not." See Casillas v. State, 733 S.W.2d 158, 164 (Tex. Crim.App.1986); Bynum v. State, 767 S.W.2d 769, 774-75 (Tex.Crim.App.1989); Bynum v. State, 711 S.W.2d 321, 323 (Tex. App.-Amarillo 1986), aff'd, 767 S.W.2d 769 (Tex.Crim.App.1989).
Appellant argues that the provisions of the Property Code protected the owners to the extent that the owners' liability to subcontractors and materialmen was limited to the amount of the agreed contract obligation. Therefore, there was no "real possibility," in fact no possibility, that the owners would suffer a substantial risk of loss by the appellant's failure to pay subcontractors and materialmen.
The Property Code requires an owner, under an original contract for which a mechanic's lien may be claimed, to retain ten percent of the contract price of the work or ten percent of the value of the work during the progress of the work and for thirty days after the work is completed. Tex.Prop.Code Ann. § 53.101 (West 1995); Hadnot v. Wenco Distribs., 961 S.W.2d 232, 234 (Tex.App.-Houston [1st Dist.] 1997, no writ). The retained funds secure the payment of those who furnish material and labor for any contractor in the performance of the work. Tex.Prop. Code Ann. § 53.102 (West 1995); Bond v. Kagan-Edelman Enters., 985 S.W.2d 253, 260 (Tex.App.-Houston [1st Dist.] 1999), pet.den., 20 S.W.3d 706 (Tex.2000). If the owner retains the funds in compliance with the statute, his liability to subcontractors and materialmen is limited to the ten percent statutory retainage fund. Tex.Prop. Code Ann. § 53.084 (West Supp.2000); Hayek v. Western Steel Co., 478 S.W.2d 786, 793-94 (Tex.1972); Bond, 985 S.W.2d at 260-61.[3]
In this case, as required by the statute, the contract provided that ten percent of appellant's requested draws would be retained by the Bank to protect the owners from liability to subcontractors and materialmen. The Bank in fact withheld and retained ten percent of appellant's requested draws. The Ristau's closing statement was offered in evidence by the State and admitted by the Court as State's exhibit 6. That statement, as well as trial testimony, shows that at closing four subcontractors and materialmen who claimed they had not been paid, and who had filed liens against the owners' property, were paid out of funds at the closing. "Specification Chem." received $5,000; "Northside Mill Work" received $2,121.25; "Overhead Doors" received $413.45; "Prophit Painting" received $450; the total amount paid to the subcontractors and materialmen at closing was $7,984.70. The closing statement also shows that $12,300 had been retained to pay claims of the subcontractors and materialmen. At the time appellant notified the owners that his company was insolvent and at the time of appellant's last draw, there was $10,120.86 in the fund retained by the Bank.
The money retained in compliance with the contract and the statute belonged to appellant subject to the claims of unpaid subcontractors and materialmen, not to the Ristaus. Ted Cook, the bank officer testified on direct examination by the State.
Q. If the (The subcontractors and materialmen) had in fact been paid, at the end of the contact, who would benefit from that retainage?
*134 A. That would be paid to the contractor.
Q. And not to the home owner?
A. Correct.
The four subcontractors and materialmen who had claims at the time of closing were fully paid from the retained funds which belonged to appellant.[4] The State did not prove an essential element of the alleged offense that appellant's failure to pay the subcontractors and materialmen involved a substantial risk of loss to the owners. The State failed as a matter of law to prove the offense alleged. When viewed in the light most favorable to the prosecution, a trier of fact could not have rationally found that the evidence proved all of the essential elements of the offense beyond a reasonable doubt.
We reverse the judgment of conviction and render judgment of acquittal. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
NOTES
[*] Before Carl E.F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.Gov't Code Ann. § 74.003(b) (West 1998).
[1] Chapter 162 of the Property Code relates to construction payments and the misapplication of trust funds, defines criminal offenses, and provides penalties applicable. Tex.Prop.Code Ann. §§ 162.001 et. seq. (West 1995 & Supp. 2000). However, the Property Code also provides that "[i]f the application of trust funds by a trustee constitutes another offense punishable under the laws of this State, the State may elect the offense for which it will prosecute the trustee." Id. § 162.033. (West Supp. 2000) The State elected to prosecute appellant under the provisions of Section 32.45. See Tex.Penal Code Ann. § 32.45.
[2] Although Section 32.45 provides protection for both the owners and beneficiaries of fiduciary property, the allegations of this indictment are limited to the alleged loss to the owners. There is no allegation of loss by the subcontractors or materialmen.
[3] Although not applicable in this case, the Property Code provides another method for subcontractors and materialmen to perfect liens that has been referred to as the "fundtrapping" method. See Tex.Prop.Code Ann. §§ 53.081-53.084. (West 1995 & Supp.2000); Bond v. Kagan-Edelman Enters., 985 S.W.2d 253, 259-60 (Tex.App.-Houston [1st Dist.] 1999), pet.den., 20 S.W.3d 706 (Tex.2000); Hadnot v. Wenco Distris., 961 S.W.2d 232, 235 (Tex.App.-Houston [1st Dist.] 1997, no pet.).
[4] The State, in its appellate brief, incorrectly argues that: "At closing, the Ristaus spent $7,984.68 to pay off four subcontractors lienholders for work which Appellant had already certified had been paid. At a minimum, the Ristuas suffered a loss of $7,984.68. That is more than a substantial risk of loss; that is a substantial loss. The retainage system set up by the Property Code is designed to protect the property owner and subcontractors from chicanery by the contractor. But that protection is not foolproof and can be circumvented by a contractor who misapplies the monies entrusted to him resulting in a substantial risk of loss to the beneficiary property owner."
| {
"pile_set_name": "FreeLaw"
} |
FILED
NOT FOR PUBLICATION JAN 26 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO CESAR SAAVEDRA- No. 13-73400
MARTINEZ, AKA Cesar Galvan
Martinez, Agency No. A073-946-253
Petitioner,
MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Julio Cesar Saavedra-Martinez, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ order dismissing his appeal
from an immigration judge’s decision denying his application for asylum and
*
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).
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review
for substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations created by the REAL ID Act.
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny the petition
for review.
Even if Saavedra-Martinez’s asylum application were not time-barred,
substantial evidence supports the agency’s adverse credibility finding based on
Saavedra-Martinez’s prior fraudulent asylum application, fraudulent NACARA
application and interview, and his inconsistent testimony about whether he knew
about the fraud and possessed a copy of the fraudulent asylum application. See
Shrestha, 590 F.3d at 1046 (inconsistencies in petitioner’s testimony supported
adverse credibility finding); see also Dhital v. Mukasey, 532 F.3d 1044, 1050-51
(9th Cir. 2008) (prior fraudulent application supported adverse credibility finding);
Singh v. Holder, 638 F.3d 1264, 1272 (9th Cir. 2011) (“[L]ies and fraudulent
documents when they are no longer necessary for the immediate escape from
persecution do support an adverse inference”). Substantial evidence also supports
the agency’s conclusion that Saavedra-Martinez failed to establish a well-founded
fear of future persecution in Mexico on account of his homosexuality. See Castro-
2 13-73400
Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011). Thus, we deny the
petition for review as to Saavedra-Martinez’s asylum claim.
Because Saavedra-Martinez failed to establish eligibility for asylum, he has
necessarily failed to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
We deny Saavedra-Martinez’s request for referral to the Circuit Mediator’s
Office.
PETITION FOR REVIEW DENIED.
3 13-73400
| {
"pile_set_name": "FreeLaw"
} |
37 F.3d 1503NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
Julian Roger SANCHEZ, Appellant,v.Kathleen HAWK, Director of the United States Bureau ofPrisons; Calvin Edwards, Regional Director;Charles H. Crandell, Warden, FederalPrison Camp, Yankton, SouthDakota, Appellee.
No. 93-3321.
United States Court of Appeals,Eighth Circuit.
Submitted: Sept. 30, 1994.Filed: Oct. 19, 1994.
Before MAGILL, Circuit Judge, GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.
PER CURIAM.
1
Julian Roger Sanchez appeals two orders of the district court dismissing his petition for mandamus and his motion for reconsideration. Having carefully reviewed the record and the parties' briefs, we conclude that the district court's orders are clearly correct and that an opinion would lack precedential value. Accordingly, the judgment of the district court is affirmed without further discussion.
2
AFFIRMED. See 8th Cir. R. 47B.
| {
"pile_set_name": "FreeLaw"
} |
676 F.2d 709
Elrodv.Schweiker
81-3148
UNITED STATES COURT OF APPEALS Ninth Circuit
3/17/82
1
W.D.Wash.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
___________
No. 95-2991
___________
Roger Allen Wolfe, *
*
Appellant, *
*
v. *
*
George Hiakel, Dr.; Tony * Appeal from the United States
Bennett, U.S. Marshal; Ken * District Court for the
Wilkerson, Sheriff Anoka * District of Minnesota.
County, MN; Mr. Veve, Shift *
Leader, Anoka County Jail; * [UNPUBLISHED]
Ms. Anderson, Housing Officer, *
Anoka County Jail; Unknown *
Doctor, Anoka County Jail, *
*
Appellees. *
___________
Submitted: March 5, 1996
Filed: March 8, 1996
___________
Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Allen Wolfe appeals from the district court's1 order granting summary
judgment to some defendants and dismissing claims against another defendant
in this 42 U.S.C. § 1983 action asserting defendants were deliberately
indifferent to Wolfe's serious medical needs. We affirm.
1
The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota, adopting the report and
recommendations of the Honorable Franklin L. Noel, United States
Magistrate Judge for the District of Minnesota.
Wolfe alleged that while he was a federal pretrial detainee
incarcerated in a Minnesota county jail, he developed kidney stones, and
he complained to prison officials and nurses of intense pain, but he
received no pain medication. Wolfe alleged he was examined by defendant
urologist Dr. George Haikel, who scheduled surgery for the following week
but who failed to give him pain medication in the interim. Wolfe alleged
shift leader Joel Vevea and housing officer Jane Anderson ignored his
requests for pain medication; another doctor (name unknown) examined Wolfe
at the jail and also refused to give him pain medication. Wolfe alleged
that, after the surgery, Dr. Haikel gave him only two days of pain
medication and an antibiotic. Wolfe claimed Dr. Haikel, U.S. Marshall
supervisor Tony Bennett, Sheriff Kenneth Wilkinson, Vevea, Anderson, and
the unknown doctor were deliberately indifferent to his serious medical
needs. Wolfe sought compensatory and punitive damages, and declaratory
relief.
After answering or filing responsive pleadings, all served defendants
moved for summary judgment. Attached to one motion were Wolfe's medical
records and nurse's notes, indicating that Wolfe was given three Ibuprofen
tablets twice a day until his surgery and Tylenol after his surgery. Wolfe
responded to the prison officials' summary judgment motion, acknowledging
that he received Ibuprofen for his bursitis in his shoulders. Wolfe also
submitted an amended complaint, substituting a Dr. Otto for the unknown
defendant, but did not seek leave to file it.
The district court, adopting the magistrate judge's recommendations,
granted defendants summary judgment, and dismissed without prejudice the
claim against the "unknown" doctor.
We review a grant of summary judgment de novo, applying the same
standard as the district court. Earnest v. Courtney, 64 F.3d 365, 366-67
(8th Cir. 1995) (per curiam). Upon careful consideration of the record,
we agree that summary judgment was
-2-
proper. Wolfe's claim that he was denied adequate pain medication does not
evidence deliberate indifference, but a disagreement with the course of
treatment. See Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993) (per
curiam) (deliberate indifference standard applies to pretrial detainees;
displeasure with medical judgement or disagreement with course of medical
treatment is not actionable); Smith v. Marcantonio, 910 F.2d 500, 502 (8th
Cir. 1990).
Finally, with respect to the dismissal without prejudice of the
unknown doctor, we find no abuse of discretion by the district court. The
dismissal was without prejudice.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
| {
"pile_set_name": "FreeLaw"
} |
672 F.Supp. 36 (1987)
Geraldine GRIGGS, Plaintiff,
v.
LEXINGTON POLICE DEPARTMENT, et al., Defendants.
Civ. A. No. 86-3217-S.
United States District Court, D. Massachusetts.
October 23, 1987.
*37 MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
SKINNER, District Judge.
On October 31, 1986,[1] plaintiff Geraldine Griggs ("Griggs") filed this pro se action alleging various federal civil rights violations and related state claims allegedly perpetrated by the following defendants:
1. Town of Lexington, Lexington Police Department, Lexington Fire Department, Paul Ferdon (Lexington police chief), John Bergeron (Lexington fire chief), and Charles Shannon (Lexington patrolman) (together, "Lexington defendants");
2. Harvard Community Health Plan, Inc., John Anthony Davies, M.D., and Lawrence Shulman, M.D. (together, "HCHP defendants");
3. Lahey Clinic Hospital, Inc., Lahey Clinic Foundation, Inc., Julie Ammen, Elaine Shaunessy, and Drs. Shelly Fleet, Gerald Bigwood, John A. Coller, Stephen A. Wasilewski, Sara R. Davies, Daniel Bienkowski, and Elliot Cohen (together, "Lahey defendants");
4. Emerson Hospital ("Emerson"); and
5. Veterans Administration, Thomas Turnage, Administrator ("VA").
With one exception, all of the alleged violations stem from an incident on October 31, 1983, wherein Griggs, a black woman, was struck by a moving vehicle as she was walking along a road in Lexington. The essence of Griggs' complaint is that she was poorly treated by the Lexington and Emerson defendants, that she received poor medical treatment from the Lahey and HCHP defendants, and that her employer, the VA, deliberately placed her at risk by changing her assigned work shift with inadequate notice, all of the aforementioned on the basis of race.
On June 11, 1987, I allowed Lexington defendants' motion for a more definite statement, finding that the complaint as framed was so vague and ambiguous so as to prevent defendants from preparing a responsive pleading. In response, Griggs has filed no less than four supplemental pleadings in an effort to comply with my order.
All defendants have now moved to dismiss. Griggs has filed opposition to Lahey defendants' and HCHP defendants' motions, but she has not filed opposition to the *38 motions of the Lexington, Emerson, and VA defendants. For the reasons that follow, all motions to dismiss are allowed.
Background
At the outset, I recognize that pro se complaints are to be read liberally, Gilday v. Boone, 657 F.2d 1 (1st Cir.1981). The facts may be summarized as follows. Shortly after midnight on October 31, 1983, plaintiff Griggs was walking along a road in Lexington, Massachusetts when she was struck by a passing automobile. Lexington police arrived at the scene and made provisions to get Griggs to a hospital. Members of Lexington Fire Department's ambulance service and personnel from Emerson Hospital transported Griggs to the Lahey Clinic in Burlington for emergency medical treatment. Griggs remained hospitalized until November 8, 1983, at which time she was transferred to the Parker Hill facility of the Harvard Community Health Plan where she remained until November 23, 1983.
The complaint does not explain in great detail or with clarity the extent of Griggs' injuries. However, it does appear that Griggs sustained serious injuries, including but not limited to broken bones and serious bruises such as to require surgery and extended hospitalization.
Lexington Defendants
Griggs charges that Lexington police have engaged in racially motivated police harassment "as far back as Spring 1982 ... [which] laid groundwork for problems relating to her auto injury and problems during hospital stay." In addition, Griggs charges that a Lexington police officer assaulted her in August, 1983. These alleged incidents occurred more than three years prior to filing of this action, and as I must apply the most analogous or appropriate state statute of limitations to this 42 U.S.C. § 1983 action,[2]Wilson, et al. v. Garcia, 471 U.S. 261, 268, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254, 261 (1985); Small v. Inhabitants of City of Belfast, 796 F.2d 544, 545 (1st Cir.1986), these portions of the complaint are time-barred, see M.G.L. c. 260, § 4.
This three-year statute of limitations does not bar those events on or after October 31, 1983. As most lucidly explained in her July 2, 1987 pleading, Griggs charges that the Lexington police deliberately filed a false accident report which tended to defame her reputation, that the report assessed her with blame for the accident, and that the intent of the defamatory statements was to inflict emotional and physical distress. Griggs also charges that the "Lexington defendants ... gave license to Lahey and Harvard defendants to look upon plaintiff with contempt and to mistreat her." Plaintiff has not pleaded a federal claim none of these allegations rise to the level of constitutional protection under 42 U.S.C. § 1983. Likewise, Griggs' charge that the Lexington Fire Department's ambulance service exhibited poor response time in rendering emergency medical care does not, by itself, rise to the level of constitutional protection.
There are many other allegations in the pleadings that relate (or may relate[3]) to Lexington defendants, but plaintiff has not attached dates to any of them, and so it is impossible to determine whether they are within the three-year limitations period. Notwithstanding this deficiency, all of these other allegations are of the same character as the aforementioned occurrences.
The only remaining allegation is that the Lexington police unreasonably searched through plaintiff's handbag at the scene of the accident and seized her federal government photo identification badge. It is unquestionable that this is a serious allegation. *39 However, many courts have recognized that it is reasonable for the police to search persons to determine their identity where police find that person unconscious, see, e.g., Vauss v. United States, 370 F.2d 250 (D.C.Cir.1966), or where the person is so seriously injured such that questioning would be impractical or unproductive, see, e.g., Floyd v. State, 24 Md.App. 363, 330 A.2d 677 (1975). See generally, W. LaFave, Search and Seizure § 5.4(c) (2d Ed. 1987). The nature and seriousness of Griggs' injuries lead me to conclude that the search and seizure as alleged falls within the scope of a reasonable search as delineated in the above line of cases. In sum, plaintiff has failed to state any claim upon which relief can be granted, and Lexington defendants' motion to dismiss must be granted.
HCHP Defendants
Griggs charges that HCHP defendants "sought to misrepresent facts in the [medical] record, caused her humiliation, and poor medical care was administered." She further alleges that these defendants failed to provide her with her medical records, that she was treated differently (e.g., by providing her with a "food tray different from normal") by hospital personnel on account of her race, and that by allowing medical residents to perform examinations upon her, Drs. Shulman and Davies directly contributed to "poor medical management." Griggs has not pleaded any federal claim.
Plaintiff does not have a cause of action against the HCHP defendants under 42 U.S.C. § 1983 no state action exists nor is any state action alleged. The only conceivable basis for a federal claim lies under 42 U.S.C. § 2000d, which provides that:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Griggs' opposition to HCHP's motion to dismiss suggests that she relies on § 2000d, as she bases her opposition on the ground that these defendants are health care providers who receive federal monies, and are therefore "federal contractors."
As the statutory language in § 2000d makes plain, a threshold requirement for maintaining an action under this section is that the defendant actually be a recipient of the federal financial assistance used in the discriminatory manner, cf. West Zion Highlands v. City of Zion, 549 F.Supp. 673 (N.D.Ill.1982). However, to bring a private action hereunder, the plaintiff must be the intended beneficiary of, an applicant for, or a participant in a federally funded program, Simpson v. Reynolds Metals Co., Inc., 629 F.2d 1226 (7th Cir.1980); see also, Trageser v. Libbie Rehabilitation Center, 590 F.2d 87, 89 (4th Cir.1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979). Griggs has only alleged that HCHP receives federal funds, and has not alleged that she is or is an intended beneficiary of those federal funds. In short, she has not pleaded the necessary nexus between HCHP's receipt of funds and her participation in those same programs, and she has failed to plead any federal claim whatsoever against the HCHP defendants.
Lahey Defendants
Lahey defendants are charged with seeking Griggs' permission for "a questionable invasive diagnostic procedure in her abdomen," with not having her well-being in mind, with allowing residents to "in effect extort a signature [for a consent form]," and for ultimately performing surgery against her will. Griggs also charges that Lahey defendants denied her adequate access to her medical records.
Griggs has not pleaded a federal claim. No state action is involved, and Griggs has not alleged that she was an intended beneficiary of or participant in a federally funded program from which Lahey received funds. Therefore, no action will lie under either 42 U.S.C. § 1983 or § 2000d.
Emerson
Emerson is charged with jeopardizing Griggs' health by its poor response time on the night of the accident. Griggs alleges that race was a factor in the quality *40 of the service, and that care was not taken "to properly administer basic life support measures and splinting at [the] accident area." Griggs does not allege any state action, and she does not allege that Emerson was a recipient of federal funding, and in sum, Griggs has not pleaded any federal claim upon which I may grant relief.
Veterans Administration (VA)
Griggs' allegations against her employer, the VA, can be boiled down to this: the VA knew of her transportation problems (i.e., the need for private transportation) to and from work, and that her employer deliberately placed her at risk by changing her work schedule with inadequate (two days) notice. Griggs raises other occurrences prior to the early morning of October 31, 1983, but these are beyond the statute of limitations, see, supra, at 4.
Griggs does not state that this action was taken on the basis of race, but nonetheless charges that her civil rights were violated. She has not alleged a federal claim against the VA, but even if she had, she has not exhausted her administrative remedies as set forth in 42 U.S.C. § 2000e-16. She is foreclosed by § 2000e-16(b) from bringing an action against her employer prior to having exhausted her remedies before the Equal Employment Opportunity Commission, and she has not done so.
Conclusion
For the foregoing reasons, the motions to dismiss of all defendants are ALLOWED, and judgment shall forthwith enter for defendants and against plaintiff.
NOTES
[1] The complaint was filed on October 31, 1986, and not on November 7, 1986 as Lexington defendants suggest in their motion to strike and dismiss.
[2] Plaintiff only generally refers to her "federal civil rights." As to the Lexington defendants, the only possible avenue for relief is 42 U.S.C. § 1983.
[3] Among the deficiencies in Griggs' pleadings is a lack of specificity. For example, in her August 5, 1987 pleading, Griggs charges that "[d]uring plaintiff's hospitalization [at HCHP], one officer accosted her in the first floor phone booth area.... Police cruisers frequently drove in view of her HCHP hospital window." Nowhere does she state that these incidents involved Lexington police.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the First Circuit
Nos. 18-1836
18-1837
IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtors.
ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN
GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND,
LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND,
L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OAKTREE
OPPORTUNITIES FUND IX, L.P.; OAKTREE OPPORTUNITIES FUND IX
(PARALLEL 2), L.P.; OAKTREE VALUE OPPORTUNITIES FUND, L.P.;
OCHER ROSE, L.L.C.; SV CREDIT, L.P.,
Movants, Appellants,
PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA
PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET
MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO
RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND
III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO
FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT
TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I,
INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE
FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED &
U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO
FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO
RICO TARGET MATURITY FUND, INC.; UBS IRA SELECT GROWTH & INCOME
PUERTO RICO FUND,
Movants,
v.
THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtor, Appellee,
AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES;
OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF
PUERTO RICO,
Movants, Appellees.
No. 18-1841
IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtors.
PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA
PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET
MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO
RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND
III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO
FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT
TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I,
INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE
FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED &
U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO
FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO
RICO TARGET MATURITY FUND, INC.,
Movants, Appellants.
ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN
GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND,
LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND,
L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE
OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND,
L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER
ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME
PUERTO RICO FUND,
Movants,
v.
THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtor, Appellee,
AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES;
OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF
PUERTO RICO,
Movants, Appellees.
No. 18-1855
IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtors.
THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Plaintiff, Appellee,
OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF
PUERTO RICO,
Interested Party, Appellee,
v.
ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN
GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND,
LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND,
L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE
OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND,
L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER
ROSE, L.L.C.; SV CREDIT, L.P.,
Defendants, Appellants,
PUERTO RICO AAA PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA
PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA PORTFOLIO TARGET
MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND II, INC.;
PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO FIXED INCOME
FUND V, INC.; PUERTO RICO FIXED INCOME FUND III, INC.; PUERTO
RICO FIXED INCOME FUND, INC.; PUERTO RICO GNMA AND U.S.
GOVERNMENT TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS
BOND FUND I, INC.; PUERTO RICO INVESTORS TAX-FREE FUND II, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND III, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND IV, INC.; PUERTO RICO INVESTORS TAX-FREE
FUND V, INC.; PUERTO RICO INVESTORS TAX-FREE FUND VI, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO MORTGAGE-
BACKED & U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO
RICO FUND II, INC.; TAX-FREE PUERTO RICO FUND, INC.; TAX-FREE
PUERTO RICO TARGET MATURITY FUND, INC.; UBS IRA SELECT GROWTH &
INCOME PUERTO RICO FUND,
Defendants.
No. 18-1858
IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtors.
THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Plaintiff, Appellee,
OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF
PUERTO RICO,
Interested Party, Appellee,
v.
PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA
PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET
MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO
RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND
III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO
FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT
TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I,
INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE
FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED &
U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO
FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO
RICO TARGET MATURITY FUND, INC.,
Defendants, Appellants,
ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN
GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND,
LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND,
L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE
OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND,
L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER
ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME
PUERTO RICO FUND,
Defendants.
No. 18-1868
IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtors.
PUERTO RICO AAA PORTFOLIO BOND FUND, INC.; PUERTO RICO AAA
PORTFOLIO BOND FUND II, INC.; PUERTO RICO AAA PORTFOLIO TARGET
MATURITY FUND, INC.; PUERTO RICO FIXED INCOME FUND, INC.; PUERTO
RICO FIXED INCOME FUND II, INC.; PUERTO RICO FIXED INCOME FUND
III, INC.; PUERTO RICO FIXED INCOME FUND IV, INC.; PUERTO RICO
FIXED INCOME FUND V, INC.; PUERTO RICO GNMA AND U.S. GOVERNMENT
TARGET MATURITY FUND, INC.; PUERTO RICO INVESTORS BOND FUND I,
INC.; PUERTO RICO INVESTORS TAX-FREE FUND, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND II, INC.; PUERTO RICO INVESTORS TAX-FREE
FUND III, INC.; PUERTO RICO INVESTORS TAX-FREE FUND IV, INC.;
PUERTO RICO INVESTORS TAX-FREE FUND V, INC.; PUERTO RICO
INVESTORS TAX-FREE FUND VI, INC.; PUERTO RICO MORTGAGE-BACKED &
U.S. GOVERNMENT SECURITIES FUND, INC.; TAX-FREE PUERTO RICO
FUND, INC.; TAX-FREE PUERTO RICO FUND II, INC.; TAX-FREE PUERTO
RICO TARGET MATURITY FUND, INC.,
Movants, Appellants,
ALTAIR GLOBAL CREDIT OPPORTUNITIES FUND (A), LLC; ANDALUSIAN
GLOBAL DESIGNATED ACTIVITY COMPANY; GLENDON OPPORTUNITIES FUND,
LP; MASON CAPITAL MASTER FUND LP; NOKOTA CAPITAL MASTER FUND,
L.P.; OAKTREE OPPORTUNITIES FUND IX (PARALLEL 2), L.P.; OAKTREE
OPPORTUNITIES FUND IX, L.P.; OAKTREE VALUE OPPORTUNITIES FUND,
L.P.; OAKTREE-FORREST MULTI-STRATEGY, L.L.C. (SERIES B); OCHER
ROSE, L.L.C.; SV CREDIT, L.P.; UBS IRA SELECT GROWTH & INCOME
PUERTO RICO FUND,
Movants,
v.
THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,
Debtor, Appellee,
AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES;
OFFICIAL COMMITTEE OF RETIRED EMPLOYEES OF THE COMMONWEALTH OF
PUERTO RICO; OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
Movants, Appellees.
ERRATA SHEET
The opinion of this Court, issued on January 30, 2019, is
amended as follows:
On page 17, line 18, replace "P.R " with "P.R. ".
On page 41, line 7, replace "2018" with "2014".
On page 53, line 4, replace "Judgement" with "Judgment".
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
Tenth Circuit
July 13, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-6001
ERIC WAYNE DOTSON, (D.C. No. 5:98-CR-00203-M-1)
(W. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.
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, submitted without oral argument.
Eric Wayne Dotson, a Georgia state prisoner proceeding pro se, appeals the
denial of his “Motion for Order Directing the U.S. Attorney General to
*
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.
Immediately Obtain Custody of Defendant.” Construing Dotson’s motion as a
habeas petition pursuant to 28 U.S.C. § 2241, we reverse and remand to the
district court with instructions to vacate its denial of relief and to dismiss the
motion without prejudice.
I. FACTS
This case requires consideration of the interaction of three separate
sentences imposed against Dotson for a series of armed jewelry store robberies
that occurred in several states from 1997 to 1998. Dotson outlines the following
history of his incarceration.
The state of Kentucky imposed the first of the three sentences at issue.
Dotson asserts that he entered Kentucky state custody on June 4, 1998. ROA,
Vol. 1 at 29. Dotson was convicted of robbery and sentenced to life
imprisonment in the state of Kentucky on July 12, 1998. ROA, Vol. 2 at 15; see
also ROA, Vol. 1 at 29. According to Dotson, this life sentence was subsequently
reduced to thirty years’ imprisonment. ROA, Vol. 1 at 30.
Then, on November 4, 1998, a federal grand jury in the Western District of
Oklahoma returned an indictment charging Dotson with one count of interference
with commerce by robbery, in violation of 18 U.S.C. § 1951, one count of using a
firearm during the commission of a crime of violence, in violation of 18 U.S.C. §
924(c)(1), and one count of knowingly transporting at least $5,000 worth of stolen
property in interstate commerce, in violation of 18 U.S.C. § 2314. Id. at 13–15.
2
Pursuant to a writ of habeas corpus ad prosequendum, Dotson was transferred
from Kentucky state custody to federal custody in the Western District of
Oklahoma. ROA, Vol. 2 at 1.
After a jury trial in the Western District of Oklahoma, Dotson was
convicted on all counts. ROA, Vol. 1 at 16. On December 10, 1999, the district
court sentenced Dotson to a total of 322 months’ imprisonment – 142 months for
robbery, 60 months for using a firearm during the commission of a crime of
violence, and 120 months for knowingly transporting at least $5,000 worth of
stolen goods in interstate commerce, with each term to be served consecutively. 1
Id. at 16–17. The judgment imposing this sentence specified that “all terms of
imprisonment [were] to be served after any other sentence that he [wa]s presently
serving.” Id. at 17. After the district court imposed his federal sentence, Dotson
was returned to Kentucky state custody to continue serving his Kentucky state
sentence. Id. at 29. According to Dotson, “[t]he U.S. Marshal’s Service [then]
lodged a detainer for the [federal] sentence . . . with the state of Kentucky.” Id. at
30.
1
Dotson directly appealed his convictions and sentence, and this court
affirmed. United States v. Dotson, 242 F.3d 391 (10th Cir. 2000) (unpublished).
Dotson then filed a motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, which the district court denied. United States v. Dotson, 28 F.
App’x 801, 802 (10th Cir. 2001) (unpublished). This court declined to grant a
certificate of appealability with respect to the district court’s denial of this
motion. Id.
3
Dotson was subsequently transferred from Kentucky state custody to
Georgia state custody pursuant to a writ of habeas corpus ad prosequendum. Id.
In the state of Georgia, Dotson was convicted of armed robbery and sentenced to
twenty years’ incarceration on June 16, 2000. Id. He was then returned to
Kentucky state custody to continue serving his Kentucky state sentence. Id.
Dotson asserts that, at that point, the state of “Georgia filed a detainer with the
State of Kentucky.” Id.
On September 2, 2004, after the state of Kentucky granted him parole from
his Kentucky state sentence, Dotson was transferred to Georgia state custody to
serve his Georgia state sentence. Id. Federal authorities filed a detainer with the
state of Georgia in 2009. Id. at 31. Dotson unsuccessfully pursued several
actions in Georgia state court asserting that he was improperly placed in Georgia
state custody prior to his service of his federal sentence. Aple. Br. at 37–38 (Ex.
2). Dotson remains in Georgia state custody. Aplt. Br. at 2.
On November 10, 2010, Dotson filed his “Motion for Order Directing the
U.S. Attorney General to Immediately Obtain Custody of the Defendant” in the
Western District of Oklahoma. ROA, Vol. 1 at 29–32. In the motion, Dotson
argued that he was improperly transferred to Georgia state custody after he was
granted parole from his Kentucky state sentence and that, instead, he should have
been placed in federal custody. In support, Dotson asserted that, because the
federal detainer was filed with the state of Kentucky prior to the Georgia state
4
detainer, he should have been placed in federal custody prior to Georgia state
custody. Id. at 30. Further, he contended that his federal and his Georgia state
sentences were to run concurrently. He explained that his federal sentence was to
commence “after any other sentence that he [wa]s currently serving.” Id. at 17.
He reasoned that, because his Georgia state sentence had not been imposed at the
time of his federal sentencing, id. at 30, the federal sentence necessarily was to
run concurrent to his Georgia state sentence. He also noted that his Georgia state
sentence was ordered to run “concurrent to both the Kentucky and federal
sentences.” 2 Id. Thus, Dotson argued that his placement in Georgia state custody
deprived him of his right to serve his federal and Georgia state sentences
concurrently.
On this basis, Dotson requested that the district court order federal
authorities to immediately place him in federal custody and to award him credit
against his federal sentence for the six years he erroneously spent in Georgia state
custody. Id. at 32. Without analyzing its jurisdiction, the district court
summarily denied Dotson’s motion on December 10, 2010. Id. at 34. The district
2
Dotson noted, “[t]he transcript of Georgia sentencing says the sentence is
to be concurrent to both the Kentucky and federal sentences, but the Georgia
court’s final disposition is silent on the matter.” ROA, Vol. 1 at 30. Further, the
government provided documentation suggesting that the Georgia state sentence
was to run consecutive to his federal sentence. Aple. Br. at 64. Thus, it is
unclear whether the Georgia state court intended Dotson’s Georgia state sentence
to run concurrent to his federal sentence.
5
court reasoned that “[Dotson] has not articulated sufficient cause for this Court to
provide the extraordinary relief requested.” Id. Dotson’s notice of appeal from
the district court’s decision was filed on January 4, 2011. Id. at 35.
II. ANALYSIS
Because Dotson is proceeding pro se, we construe his pleadings liberally.
See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). There are
two ways in which we could construe Dotson’s “Motion for Order Directing the
U.S. Attorney General to Immediately Obtain Custody of Defendant”: (1) as an
application for a writ of mandamus pursuant to 28 U.S.C. § 1361; or (2) as a
habeas petition under 28 U.S.C. § 2241 challenging the execution of his federal
sentence. 3 We conclude that Dotson failed to establish the requisite conditions
for relief under 28 U.S.C. § 1361. However, when construing Dotson’s motion as
a habeas petition under 28 U.S.C. § 2241, we conclude that the district court
should have dismissed the motion without prejudice for lack of jurisdiction.
A. Petition for writ of mandamus pursuant to 28 U.S.C. § 1361
We first construe Dotson’s motion as a request for a writ of mandamus
pursuant to 28 U.S.C. § 1361. Under 28 U.S.C. § 1361, “[t]he district courts shall
3
Because we construe Dotson’s motion as either a petition for a writ of
mandamus under 28 U.S.C. § 1361 or a habeas petition under 28 U.S.C. § 2241,
rather than a motion in his criminal case, we conclude that Dotson’s notice of
appeal was timely. See Fed. R. App. P. 4(a)(1)(B) (“When the United States . . .
is a party, the notice of appeal may be filed within 60 days after the judgment or
order appealed from is entered.”).
6
have original jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to perform a duty
owed to the plaintiff.” To be eligible for this relief, a petitioner must establish
“(1) that he has a clear right to relief, (2) that the respondent’s duty to perform
the act in question is plainly defined and peremptory, and (3) that he has no other
adequate remedy.” Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005). We
review de novo whether the conditions for issuing a writ of mandamus are
satisfied. Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995). We
conclude that Dotson did not establish the requisite conditions for relief under 28
U.S.C. § 1361.
Dotson’s argument regarding the order in which the federal and Georgia
state detainers were filed with the state of Kentucky does not evidence a clear
right to relief. “[T]he determination of custody and service of sentence between
[two different sovereigns] is a matter of comity to be resolved by the executive
branches of each sovereign.” Hernandez v. U.S. Att’y Gen., 689 F.2d 915, 917
(10th Cir. 1982). Federal and state authorities have broad discretion to determine
the order in which a prisoner may serve his sentences. See Hall v. Looney, 256
F.2d 59, 60 (10th Cir. 1958) (per curiam). Detainers are filed to assure that a
prisoner is not released from confinement until the jurisdiction asserting a right to
custody has had an opportunity to act. We could locate no authority for Dotson’s
proposition that the sequence in which detainers are filed dictates the order
7
sentences are to be served. Thus, Dotson’s assertion that his federal detainer was
filed prior to his Georgia state detainer does not establish the requisite conditions
for relief pursuant to 28 U.S.C. § 1361.
With regard to his argument that the federal and Georgia state sentences
were to run concurrently, we conclude that Dotson had another adequate remedy
available to him to pursue relief. As the government argues, Dotson could have
asserted this argument in a habeas petition pursuant to 28 U.S.C. § 2241. This
argument could be characterized as an attack on the execution of his federal
sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A petition
under 28 U.S.C. § 2241 attacks the execution of a sentence . . . .”); see also
United States v. Eccleston, 521 F.3d 1249 (10th Cir. 2008) (considering a state
prisoner’s argument that he was “entitled to serve his sentence in the custody of
the [Bureau of Prisons] and that his federal and state sentences must be served
concurrently” in a habeas petition under 28 U.S.C. § 2241). Further, Dotson
satisfies the “in custody” requirement for habeas purposes because “a prisoner
may challenge a sentence that was imposed consecutively to his current sentence
but which he has not yet begun to serve.” United States v. Miller, 594 F.3d 1240,
1242 (10th Cir. 2010) (internal quotation marks and alteration omitted). Because
Dotson could have asserted this argument in a petition under 28 U.S.C. § 2241, he
cannot establish the requisite conditions for relief pursuant to 28 U.S.C. § 1361.
8
B. Habeas petition under 28 U.S.C. § 2241
We alternatively construe Dotson’s motion asserting that his federal and
Georgia state sentences should run concurrently as a challenge to the execution of
his federal sentence pursuant to 28 U.S.C. § 2241. 4 However, before we reach the
merits, we note that Dotson filed his motion in the wrong federal district. “A
petition under 28 U.S.C. § 2241 . . . must be filed in the district where the
prisoner is confined.” Bradshaw, 86 F.3d at 166 (emphasis added). Dotson is
currently incarcerated in the state of Georgia. Thus, the district court in the
Western District of Oklahoma lacked jurisdiction to consider this argument in a
28 U.S.C. § 2241 petition.
The “jurisdictional defects that arise when a suit is filed in the wrong
federal district may be cured by transfer under the federal transfer statute, 28
U.S.C. § 1631, which requires a court to transfer such an action if the transfer is
in the interest of justice.” Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir.
2000) (internal quotation marks omitted). “Nonetheless, . . . a court is authorized
[first] to consider the consequences of a transfer by taking a peek at the merits to
avoid raising false hopes and wasting judicial resources that would result from
4
We note that, to the extent his motion is construed as a habeas petition
under 28 U.S.C. § 2241 challenging the execution of his federal sentence, Dotson
is not required to obtain a certificate of appealability to appeal the district court’s
denial of relief. See Miller, 594 F.3d at 1241 (explaining that a state inmate
challenging the execution of his federal sentence is not required to obtain a
certificate of appealability).
9
transferring a case which is clearly doomed.” Id. (internal quotation marks
omitted).
Based on our review of Dotson’s motion and of the record, we conclude
that a transfer is not in the interest of justice. “The exhaustion of available
administrative remedies is a prerequisite for [28 U.S.C.] § 2241 habeas relief . . .
.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). At no point does
Dotson assert, and the record provides no evidence, that he pursued the available
administrative relief within the Bureau of Prisons (BOP) prior to filing his motion
in the district court. According to BOP Program Statement 5160.05 § 8, a BOP
Regional Director may “designate a state institution for concurrent service of a
federal sentence” when “consistent with the intent of the federal sentencing court
or the goals of the criminal justice system.” 5 A prisoner may request that BOP
designate his state prison facility as the place of his federal confinement
regardless of whether he is in state or federal custody. See id. § 9(b)(4)(b) (“This
type of request will be considered regardless of whether the inmate is physically
located in either a federal or state institution.”); see also Eccleston, 521 F.3d at
1252 (discussing the BOP administrative relief that a state inmate pursued with
regard to his undischarged federal sentence). Because Dotson has not pursued
5
We note this BOP Program Statement only to suggest an avenue for
exhaustion. We are not ruling on the merits of Dotson’s contention that his
federal and Georgia state sentences are to run concurrently.
10
available administrative remedies, habeas relief pursuant to 28 U.S.C. § 2241
cannot be granted. Thus, we conclude that a transfer of his motion is not in the
interest of justice.
III. CONCLUSION
Construing Dotson’s motion as a habeas petition under 28 U.S.C. § 2241,
we reverse and remand to the district court with instructions to vacate its denial of
the relief requested and to dismiss the motion without prejudice.
Entered for the Court
Mary Beck Briscoe
Chief Judge
11
| {
"pile_set_name": "FreeLaw"
} |
711 N.E.2d 1288 (1999)
Kenley E. BURKE, Appellant-Plaintiff,
v.
BOARD OF DIRECTORS OF the MONROE COUNTY PUBLIC LIBRARY, John W. Lasher and Kathleen Gregg, Appellees-Defendants.
No. 53A01-9806-CV-236.
Court of Appeals of Indiana.
July 7, 1999.
*1289 Rudolph Wm. Savich, Bloomington, Indiana, Attorney for Appellant.
Gary J. Clendening, Kendra G. Gjerdingen, Mallor Clendening Grodner & Bohrer, Bloomington, Indiana, Attorneys for Appellees.
OPINIONON REHEARING
NAJAM, Judge.
Kenley E. Burke petitions for rehearing of our opinion in Burke v. Board of Directors of Monroe County Public Library, 709 N.E.2d 1036 (Ind.Ct.App.1999). There, we affirmed the trial court's grant of summary judgment in a suit Burke initiated against the Board of Directors of the Monroe County Public Library, John W. Lasher and Kathleen Gregg for breach of contract, intentional interference with an employment contract and retaliatory discharge. We decided that those claims sounded in tort and were barred because Burke failed to provide the 180-day notice required by the Indiana Tort Claims Act. We also concluded that Burke failed to designate evidence to support his claim that he was terminated for exercising his right to free speech.
Burke now seeks rehearing and contends that we improperly found, on a separate ground, that his complaint was untimely under Section 5 of the Administrative Orders and Procedures Act (the "AOPA"). See IND.CODE § 4-21.5-5-5. Burke is correct. The Monroe County Public Library is not an agency within contemplation of the AOPA, see IND.CODE § 4-21.5-1-3, and Section 5 does not apply. Burke's petition for rehearing is granted on that issue, and we vacate that part of our opinion in which we said that his complaint was untimely under the AOPA.
Nevertheless, the Tort Claims Act applies to Burke's claims for breach of contract, intentional interference with an employment contract and retaliatory discharge. Burke did not seek judicial review in the trial court, and we reaffirm that, on appeal, he cannot avoid application of the Tort Claims Act notice requirement by recasting his complaint as a petition for judicial review. Burke, 709 N.E.2d at 1041.
Petition for Rehearing granted to modify our opinion, in part, and denied in all other respects.
SHARPNACK, C.J., and BAILEY, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
72 F.3d 633
64 USLW 2407
Thomas D. CARVER, Appellant,v.Jeremiah W. NIXON, Attorney General, State of Missouri;John Maupin, Chair, Missouri Ethics Commission, Appellees.
No. 95-2608.
United States Court of Appeals,Eighth Circuit.
Submitted Sept. 13, 1995.Decided Dec. 19, 1995.
T. Patrick Deaton, Springfield, Missouri, argued, for appellant.
James Robert Layton, Assistant Attorney General, Jefferson City, Missouri, argued (Cynthia A. Barrett, Stephen R. Martin, II, and Amy E. Randles, on the brief), for appellees.
Before BOWMAN, ROSS and JOHN R. GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
1
The campaign contribution limits in Proposition A, Mo.Ann.Stat. Sec. 130.100 (Vernon Supp.1995), adopted by initiative, were declared constitutional by the district court, which refused to enjoin their implementation. Carver v. Nixon, 882 F.Supp. 901 (W.D.Mo.1995). Thomas D. Carver appeals, arguing that the district court erred in ruling that the Proposition A contribution limits for state and local candidates did not violate a contributor's freedoms of speech and association under the First Amendment. We conclude that section 130.100 is unconstitutional and reverse the judgment of the district court.
2
In the spring of 1994, the Missouri General Assembly passed Senate Bill 650, adopting campaign contribution limits to become effective January 1, 1995. See Mo.Rev.Stat. Sec. 130.032 (1994). Voters approved Proposition A at the November 8, 1994 election. Proposition A adopted lower contribution limits and became effective immediately.1
3
The Missouri Attorney General issued an opinion stating that, although both Proposition A and Senate Bill 650 "concern campaign finance, they are not irreconcilably inconsistent." Missouri Ethics Commission, Op.Atty.Gen. No. 218-94 (Dec. 6, 1994), at 4. The Attorney General stated that the two provisions stand together in regulating campaign finance, and to the extent there is a conflict between specific provisions of the statutes, the more restrictive provision prevails. Id. Thus, the lower campaign contribution limits of Proposition A control.2
4
The contribution limits in Proposition A are limits "per election cycle per candidate."3 Mo.Ann.Stat. Sec. 130.100. The statute provides that no person or committee shall make a contribution to any one candidate or candidate committee with an aggregate value in excess of: (a) $100 for candidates in districts with fewer than 100,000 residents; (b) $200 for other than statewide candidates in districts of 100,000 or more residents; and (c) $300 for statewide candidates. Mo.Ann.Stat. Sec. 130.100. Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and Secretary of State are enumerated as statewide candidates for purposes of the section. Mo.Ann.Stat. Sec. 130.100(2) [sic].
5
Senate Bill 650 imposed limits for each election. Thus, on an election cycle basis, the Senate Bill 650 limits are twice the amount enumerated in the text of Senate Bill 650. See Mo.Rev.Stat. Sec. 130.032.1. Contributions are limited to $1,000 per election for Governor and other statewide offices, as well as for candidates in districts with a population of at least 250,000. Mo.Rev.Stat. Secs. 130.032.1(1), (6). There is a $500 per election contribution limit for candidates for State Senate, and for any office in electoral districts with a population between 100,000 and 250,000. Mo.Rev.Stat. Secs. 130.032.1(2), (5). Contributions are limited to $250 per election for candidates for State Representative and for offices in districts of a population less than 100,000. Mo.Rev.Stat. Secs. 130.032.1(3), (4).
6
Carver brought this action to enjoin enforcement of Proposition A. He asserted that Proposition A restricted his ability to make contributions in violation of his rights of free speech and association. He also argued that the limits are so low as to unconstitutionally interfere with his ability to support candidates and to communicate with potential supporters for fundraising purposes. He argued that Proposition A is not narrowly tailored to meet the State's interests of avoiding corruption or the appearance of corruption, and will not prevent wealthy special interests from opposing candidates.
7
After hearing evidence and receiving briefs, the district court denied the injunction. Carver, 882 F.Supp. at 902. The court recognized that Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), governed the issues. Carver, 882 F.Supp. at 903. The court read from Buckley that "a major purpose of the First Amendment is to protect political speech," and that "[l]imitations on these rights are permissible where a compelling state interest is served, if the limitations imposed are narrowly tailored to serve that interest." Carver, 882 F.Supp. at 903-04. The court observed that the Supreme Court has recognized that governments have a compelling interest in preventing corruption and the appearance of corruption that may result from individuals making large contributions to candidates. Id. at 904 (citing Buckley, 424 U.S. at 25-27, 96 S.Ct. at 637-38).
8
The district court ruled that the Proposition A limits were not so low as to be an unconstitutional restriction of First Amendment rights. Id. at 904-05. The court held that "the law is tailored narrowly enough to help the state meet its goals of eliminating some of the means of corruption and of avoiding the appearance of corruption." Id. at 906. The court observed that Proposition A does not prevent candidates from spending their own money on their campaigns.4 Id. The court stated that, although Proposition A does not address all of the problems related to campaign finance, it is a positive step toward eliminating political corruption, even if it is not comprehensive. Id. It may not close all of the loopholes, but that does not make it unconstitutional. Id. Carver appeals.
I.
9
Carver argues before us, as he did in the district court, that the Proposition A contribution limits restrict his First Amendment rights to political communication and association. He contends that, because the Proposition A limits burden fundamental First Amendment rights, they are subject to strict scrutiny and do not serve a compelling state interest. The State argues that we should apply an intermediate standard of review, but even if we apply strict scrutiny, the Proposition A limits are narrowly tailored to address a compelling state interest.
10
The Supreme Court identified the interests implicated by contribution limits in Buckley, 424 U.S. at 14, 96 S.Ct. at 632 (citations omitted):
11
[C]ontribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.... The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." ... "[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates...."
12
"[C]ontribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties...." Id. at 18, 96 S.Ct. at 634.
13
In view of these fundamental interests, the Court has instructed that campaign contribution limits are "subject to the closest scrutiny." Id. at 25, 96 S.Ct. at 637 (quoting NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958)). Under this standard, "a significant interference with protected rights of political association may be sustained" only when the State can demonstrate "a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms." Id. (quotations omitted) (citing Cousins v. Wigoda, 419 U.S. 477, 488, 95 S.Ct. 541, 547-48, 42 L.Ed.2d 595 (1975); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340-41, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960)).
14
After identifying the interests and the applicable level of review, the Court in Buckley, 424 U.S. at 58-59, 96 S.Ct. at 653-54, upheld the constitutionality of the $1,000 contribution limit for federal elected offices. The Court reasoned that the $1,000 contribution limit focused precisely on the problem of large campaign contributions and, therefore, was narrowly tailored to the goal of limiting corruption and the appearance of corruption. Id. at 26-28, 96 S.Ct. at 638-39. The Court pointed out that a contribution limit "entails only a marginal restriction upon the contributor's ability to engage in free communication" and does not materially undermine "the potential for robust and effective discussion of candidates and campaign issues...." Id. at 20-21, 29, 96 S.Ct. at 635, 640. The Court characterized a contribution as only "a general expression of support for the candidate and his views," explaining that "the transformation of contributions into political debate involves speech by someone other than the contributor." Id. at 21, 96 S.Ct. at 636.
15
The Court recognized that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Id. at 21, 96 S.Ct. at 636. The Court found no evidence that the $1,000 limit prevented candidates and political committees from amassing the resources necessary for effective advocacy. Id. at 21, 96 S.Ct. at 636. The Court refused to analyze the propriety of the specific dollar amount of the contribution limits. Id. at 30, 96 S.Ct. at 640. The Court cautioned, however, that if the contribution limits were too low, the limits could be unconstitutional. Id.
16
The Court struck down the independent expenditure limitation which prohibited a candidate from using more than $1,000 of his own money in his campaign and also limited a candidate's total campaign expenditures. Id. at 39, 96 S.Ct. at 644. The Court distinguished limits on expenditures from limits on contributions, concluding that the expenditure limits were more restrictive of speech, as they "necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating in today's mass society requires the expenditure of money." Id. at 19, 96 S.Ct. at 634-35 (footnote omitted).
17
In addition, the Court concluded that the government interest in preventing corruption or the appearance of corruption could not justify the ceiling on independent expenditures. Id. at 45, 53-54, 96 S.Ct. at 647, 651-52. The Court found little relationship between the interest of avoiding corruption and limiting expenditures to one's own campaign or limiting overall campaign expenditures, particularly in light of the limit on campaign contributions. Id. at 55, 96 S.Ct. at 652.
18
The State argues that the Court in Buckley applied strict scrutiny only to legislation limiting independent expenditures and applied a lower, intermediate standard of review to contribution limits. Citing the passages from Buckley referred to above, the State argues that contribution limits are entitled to an intermediate level of scrutiny because contributions are only symbolic expression of support, and limiting contributions does not infringe on the contributor's freedom to discuss candidates and issues.
19
We recognize that the Court distinguished restrictions on independent expenditures from restrictions on contributions. Buckley, 424 U.S. at 20-21, 96 S.Ct. at 635-36. Since Buckley, members of the Court, in dicta, have indicated that contribution limits should receive a lower level of scrutiny. See Federal Election Comm'n v. Massachusetts Citizens for Life, 479 U.S. 238, 259-60, 107 S.Ct. 616, 628-29, 93 L.Ed.2d 539 (1986); California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182, 196, 101 S.Ct. 2712, 2721-22, 69 L.Ed.2d 567 (1981) (Marshall, J., plurality); Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 301, 102 S.Ct. 434, 440, 70 L.Ed.2d 492 (1981) (Marshall, J., concurring in judgment). In contrast, other members of the Court strongly disagree, arguing that nothing less than strict scrutiny should apply to contribution limits. See California Medical Ass'n, 453 U.S. at 201-02, 101 S.Ct. at 2724-25 (Blackmun, J., concurring in part and in judgment); Citizens Against Rent Control, 454 U.S. at 302, 102 S.Ct. at 440-41 (Blackmun and O'Connor, JJ., concurring in judgment) ("ordinance cannot survive constitutional challenge unless it withstands 'exacting scrutiny' "). The Court has not ruled that anything other than strict scrutiny applies in cases involving contribution limits. When the Court in Buckley analyzed the contribution limits, it articulated and applied a strict scrutiny standard of review. Id. at 25, 96 S.Ct. at 637-38. Therefore, like other courts since the Buckley decision, we must apply the "rigorous" standard of review articulated in Buckley. See, e.g., Harwin v. Goleta Water Dist., 953 F.2d 488, 491 n. 6 (9th Cir.1991) (recognizing that contribution limits may be subject to a lower level of scrutiny, but requiring the government to show "a sufficiently important interest and employ[ ] means closely drawn to avoid unnecessary abridgement of associational freedoms") (quoting Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38).
20
Moreover, that voters adopted Proposition A by initiative does not affect the applicable level of scrutiny. We must analyze Proposition A under the same standard that we apply to the product of a legislature. "It is irrelevant that the voters rather than a legislative body enacted [a statute], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." Citizens Against Rent Control, 454 U.S. at 295, 102 S.Ct. at 437.
21
Thus, we apply strict scrutiny in this case, and the State must show that the Proposition A limits are narrowly tailored to meet a compelling state interest. "When the Government defends a regulation on speech ... it must do more than simply 'posit the existence of the disease sought to be cured.' ... It must demonstrate that the recited harms are real, ... and that the regulation will in fact alleviate these harms in a direct and material way." United States v. National Treasury Employees Union, --- U.S. ----, ----, 115 S.Ct. 1003, 1017, 130 L.Ed.2d 964 (1995) (quoting Turner Broadcasting Sys., Inc. v. Federal Communications Comm'n, --- U.S. ----, ----, 114 S.Ct. 2445, 2470, 129 L.Ed.2d 497 (1994) (Kennedy, J., plurality)).
II.
22
In Buckley, 424 U.S. at 25-26, 96 S.Ct. at 637-638, the Court identified the compelling interest as "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office." Id. at 25, 96 S.Ct. at 638 (emphasis added). The Court reiterated this interest at least seven times. Id. at 25-29, 96 S.Ct. at 637-40. It found it unnecessary to look beyond this primary interest to the remaining interests offered to justify contribution limits. Id. at 25-26, 96 S.Ct. at 637-38 (identifying the other interests as equalizing the relative ability of all citizens to affect the outcome of an election and slowing the skyrocketing cost of political campaigns). The Court, in discussing large contributions, specifically referred to disturbing examples surfacing after the 1972 election.5 Id. at 27, 96 S.Ct. at 639. Examining the 1974 election, the Court found that the $1,000 contribution limit would not severely impact political dialogue, pointing out that most contributions (94.9 percent in the 1974 election) came from contributions of $1,000 or less. Id. at 21 n. 23, 26 n. 27, 96 S.Ct. at 636 n. 23, 638 n. 27. The Court decided that in addition to requiring the disclosure of contributions, Congress was entitled to conclude that contribution limits were necessary "to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions." Id. at 28, 96 S.Ct. at 639.
23
The Supreme Court recently reaffirmed that the compelling interest identified in Buckley was limiting large contributions to candidates. The Court stated:
24
Buckley identified a single narrow exception to the rule that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large contributors to a candidate:
25
To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined....
26
... Congress could legitimately conclude that the avoidance of the appearance of improper influence is also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.
27
Citizens Against Rent Control, 454 U.S. at 296-97, 102 S.Ct. at 438 (citations and quotations omitted) (emphasis added).
28
The district court held that "[u]nder Buckley, Missouri clearly has a compelling state interest in limiting campaign contributions." Carver, 882 F.Supp. at 904. This does not square with the interest of limiting "large campaign contributions" as defined in Buckley. The district court's decision substantially broadens the compelling interest identified in Buckley. The district court erred as a matter of law in extending Buckley to the infinitely broader interest of limiting all, not just large, campaign contributions.
29
The rationale of the district court's opinion is perhaps explained by the State's argument before us. The State sets out the compelling state interest justifying Proposition A in general terms. The State identifies the compelling interest as that of attacking, "not just the reality, but even the appearance or perception of corruption that may take the form of a 'quid pro quo' between a contributor and a candidate."6 The State, however, fails to refine this general interest consistent with the compelling interest defined by the Court in Buckley as limiting the reality or perception of undue influence and corruption from large contributions. See Citizens Against Rent Control, 454 U.S. at 296-97, 102 S.Ct. at 437-38. We examine the contribution limits in section 130.100 in light of this compelling interest.
III.
A.
30
Our review of the district court's factual findings in this First Amendment case is governed by the Supreme Court's recent decision of Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, --- U.S. ----, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). The Court instructed that, when considering whether the petitioners' activity is protected speech, we have "a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court." Id. at ----, 115 S.Ct. at 2344 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958-59, 80 L.Ed.2d 502 (1984)). The Court explained:
31
The requirement of independent appellate review is a rule of federal constitutional law.... [T]he reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that findings of fact shall not be set aside unless clearly erroneous, we are obliged to make a fresh examination of crucial facts.
32
Id. (citations and quotations omitted). Hurley requires that we independently review the facts to decide whether certain conduct is entitled to First Amendment protection. The factual findings surrounding the determination of whether the Proposition A limits unconstitutionally interfere with Carver's free speech and association rights are so intermingled with the constitutional questions of law that we are obligated "to make an independent examination of the whole record...." * Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)).
B.
33
In considering Carver's argument that "the limits imposed by Proposition A are so low as to be an unconstitutional restriction of First Amendment rights of speech and association," the district court acknowledged that "what determines the constitutionality of the limits is the dollar amount of the limits." Carver, 882 F.Supp. at 904-05. Comparing the $1,000 limit on contributions to candidates for federal offices in Buckley with the Proposition A limits, the court emphasized the incremental nature of the Proposition A limits, which vary according to population and the office being sought.7 Id. at 905. The court concluded that "[t]he stairstepping of the contribution limits demonstrates a more narrow tailoring of Proposition A to fit the state's goal." Id.
34
The district court observed that there was no evidence that the Proposition A limits would dramatically affect campaign funding or candidates' ability to communicate to the voters. Id. The court relied on the fact that twenty-seven states and the federal government have imposed contribution limits, and that an overwhelming seventy-four percent of Missouri voters "determined that contribution limits are necessary to combat corruption and the appearance thereof." Id. The court found that "Proposition A does not favor incumbents and that many challengers welcome limits on contributions as a way to stop incumbents from accepting large contributions." Id. Finally, the district court referred to expert testimony indicating that more people will contribute to campaigns when contribution limits are in place, because people feel that the candidates will appreciate and be more responsive to smaller contributors. Id. at 905-06.
35
These findings may address the desirability of campaign contribution limits, but they do not focus on whether the Proposition A limits are narrowly tailored to address the reality or appearance of corruption associated with large contributions. While indicating popular sentiment in favor of campaign finance reform, the fact that seventy-four percent of the voters approved Proposition A does not assist our analysis, because voters may not adopt an unconstitutional law any more than the legislature. Citizens Against Rent Control, 454 U.S. at 295, 102 S.Ct. at 436-37; see also U.S. Term Limits, Inc. v. Thornton, --- U.S. ----, ----, 115 S.Ct. 1842, 1871, 131 L.Ed.2d 881 (1995) (holding unconstitutional congressional term limits adopted by voter initiative).
36
The district court's discussion shows the district court posed, but did not answer, the question of whether the contribution limits were too low. Instead, the court only concluded that the stairstepping of the limits demonstrated that the limits were narrowly tailored. The fact that Proposition A sets forth graduated limits has nothing to do with whether the limits are so low as to be unconstitutional.
C.
37
Carver argues that the evidence establishes that the limits in Proposition A violate his right to associate as a contributor. The State responds that Carver has not proved that Proposition A limits his right to contribute at a meaningful level. The State contends that the Proposition A limits do not prevent Carver from effectively speaking on behalf of a candidate or joining with other individuals to express themselves in constitutionally protected independent committees, such as those involved in Day v. Holahan, 34 F.3d 1356 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 936, 130 L.Ed.2d 881 (1995). The State argues that there was no proof that contributors like Carver could not find other outlets for effectively expressing their message in Missouri elections.
38
While the extent of Carver's testimony is at best skeletal, it is sufficient to demonstrate that Carver has contributed, and intends to contribute in the future, amounts in excess of the Proposition A limits to support his interest in "good candidates" and "good government." The State's argument that Carver could continue to exercise his First Amendment rights by joining an independent group does not address whether the limits are so low as to prevent Carver from freely associating with a candidate.
39
The State points out that Buckley does not require specific proof of the maximum contribution limit, and that we may not use "a scalpel" to invalidate Proposition A. It is true that the Court did not analyze the propriety of the $1,000 limit. Indeed, the Court observed that while Congress could have structured the limits in a graduated fashion for congressional and presidential campaigns, its failure to do so did not invalidate the legislation. Buckley, 424 U.S. at 30, 96 S.Ct. at 640. The Court reiterated the court of appeals' statement that "a court has no scalpel to probe" whether a different ceiling might not serve as well. Id. Although we certainly are not free to fine tune the limits established by Proposition A, and we generally accept the limits established by the legislature, Buckley instructs that we must invalidate that judgment when the "distinctions in degree" become "differences in kind." Id.
40
The Court in Buckley, 424 U.S. at 30, 96 S.Ct. at 640, pointed to two decisions, Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973), and Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), as illustrating differences in kind. In Rosario, 410 U.S. at 754, 93 S.Ct. at 1248, the Court approved a party enrollment provision requiring a voter to enroll in a party at least thirty days before the general election in order to vote in the next party primary. The Court held that, although the cutoff date for enrollment could occur up to eight months before a presidential primary, and up to eleven months before a nonpresidential primary, the requirement was not arbitrary and unconnected to the important state goal of inhibiting party raiding. Id. at 760, 93 S.Ct. at 1251.
41
The Court, however, struck down a party enrollment requirement in Kusper, 414 U.S. at 52, 94 S.Ct. at 305, which prohibited a voter from voting in the primary election of a political party if he had voted in the primary of another party in the preceding twenty-three months. The Court reaffirmed its decision in Rosario, but held that the enrollment requirement at issue caused a two-year delay for certain voters, and thus, violated the voter's right to free political association. Id. at 61, 94 S.Ct. at 309-10. Although the Court allowed an eight-month delay in Rosario, the almost two-year delay in Kusper, nearly three times the delay approved in Rosario, crossed the constitutional line. Thus, the enrollment requirement in Kusper amounted to a "difference in kind."
42
Similarly, in Day, 34 F.3d at 1365, we dealt with the issues raised by very low contribution limits. We considered the constitutionality of a Minnesota statute imposing a $100 limit on contributions to political committees. Although Day did not consider contribution limits to candidates, we compared the $100 limit on contributions to political committees in Day to the $1,000 limit on contributions to candidates considered in Buckley. Day, 34 F.3d at 1366. After recognizing that the $1,000 limit in Buckley was not a "constitutional minimum," we nevertheless concluded that the $100 limit significantly impaired the ability of contributors to exercise their First Amendment rights. Id. We held that the limit was "too low to allow meaningful participation in protected political speech and association," and we concluded that the law was "not narrowly tailored to serve the state's legitimate interest in protecting the integrity of the political system." Id. In reaching this conclusion, we relied on the fact that about 25 to 33 percent of the contributions to political committees in the most recent election exceeded the $100 limit, and that after adjusting for inflation, the limit was about 4 percent of the $1,000 limit in Buckley. Id. Our observation in Day about the effect of inflation applies with equal force in this case.
43
The district court referred to the fact that twenty-seven states have contribution limits, but it did not analyze the limits in detail. Any meaningful comparison of these limits must include consideration of not only the amount, but also whether the limits are per election cycle or per election. The Proposition A limits, ranging from $100 to $300 per election cycle, are dramatically lower than the $2,000 limit per election cycle approved in Buckley.8 Not only are the Proposition A limits much lower than the federal limits, they are lower than the limits in any other state. Two states, Montana and Oregon, have limits for state senate races that equal those in Proposition A, but their limits for statewide offices and state representatives are greater than those in Missouri.9
44
The question thus becomes whether Missouri must adopt the lowest contribution limits in the nation to remedy the corruption caused by large campaign contributions. The State presented testimony at trial about a $420,000 contribution from a Morgan Stanley political action committee to various races in north Missouri, and about the "Keating Five" scandal.10
45
None of these examples prove that the Proposition A limits are narrowly tailored. A $420,000 contribution is a far cry from the limits in Proposition A, and the other examples involve individual conduct leading to criminal prosecution. We cannot conclude that the limits in Proposition A are in any way narrowly tailored or carefully drawn to remedy such situations. See Massachusetts Citizens for Life, 479 U.S. at 265, 107 S.Ct. at 631-32 (we may "curtail speech only to the degree necessary to meet the particular problem at hand"); Day, 34 F.3d at 1366.
46
In considering whether the Proposition A limits are narrowly tailored, we must also recognize that the limits were not adopted in a vacuum. The question is not simply that of some limits or none at all, but rather Proposition A as compared to those in Senate Bill 650, which was to become effective January 1, 1995.
47
The Proposition A limits are only ten to twenty percent of the higher limits in Senate Bill 650.11 The State produced no evidence as to why the Proposition A limits of $100, $200, and $300 were selected. Further, the State presented no evidence to demonstrate that the limits were narrowly tailored to combat corruption or the appearance of corruption associated with large campaign contributions. See Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38. The record is barren of any evidence of a harm or disease that needed to be addressed between the limits of Senate Bill 650 and those enacted in Proposition A. See National Treasury Employees Union, --- U.S. at ----, 115 S.Ct. at 1017.
48
In ruling that the contribution limits in Buckley were narrowly tailored, the Supreme Court pointed out that only about five percent of the contributors in the 1974 election gave more than the $1,000 limit. Buckley, 424 U.S. at 21 n. 23, 96 S.Ct. at 636 n. 23. The State's own evidence shows that a much higher percentage of contributors will be impacted by the limits in Proposition A. At trial, the State presented exhibits showing contributions made in past races for Auditor, State Senate and State Representative.12 According to the State's exhibits, in the 1994 Auditor's race, 19.5 percent of the contributors gave more than the $300 Proposition A limit, but less than the $1,000 Senate Bill 650 limit.13 In the State Senate race, 21.6 percent of the contributors gave more than the $200 Proposition A limit, but less than the $1,000 Senate Bill 650 limit on an election cycle basis.14 In the State Representative race, 19.0 percent of the contributors gave more than the $100 Proposition A limit, but less than the $250 Senate Bill 650 limit.15
49
Further, the State's exhibits show that 27.5 percent of the contributors in the 1994 Auditor's race gave more than the $300 Proposition A limits. In the State Senate race, 23.7 percent of the contributors gave more than the $200 Proposition A limit. Finally, in the State Representative race, 35.6 percent of the contributors gave more than the $100 Proposition A limit.
50
The State made no showing as to why it was necessary to adopt the lowest contribution limits in the nation and restrict the First Amendment rights of so many contributors in order to prevent corruption or the appearance of corruption associated with large campaign contributions. Proposition A substantially limits Carver's ability to contribute to candidates and will have a considerable impact on many contributors besides Carver. The State simply argues that limits which are nearly four times as restrictive as the limits approved in Buckley are narrowly tailored. The State argues we may not fine tune the specific dollar amount of the limits, but fails to demonstrate that the Proposition A limits are not a "difference in kind." See Kusper, 414 U.S. at 61, 94 S.Ct. at 309-10 (overturning an enrollment requirement approximately three times longer than that approved by the Court in Rosario ). We hold that the Proposition A limits amount to a difference in kind from the limits in Buckley. The limits are not closely drawn to reduce corruption or the appearance of corruption associated with large campaign contributions. Thus, the State has failed to carry its burden of demonstrating that Proposition A will alleviate the harms in a direct and material way, Turner Broadcasting System, --- U.S. at ----, 114 S.Ct. at 2470, or is closely drawn to avoid unnecessary abridgement of associational freedoms, Buckley, 424 U.S. at 25, 96 S.Ct. at 637-38. Accordingly, we conclude that the Proposition A contribution limits unconstitutionally burden the First Amendment rights of association and expression.
IV.
51
The State argues from Turner Broadcasting System, --- U.S. at ----, 114 S.Ct. at 2471, that we "must accord substantial deference to the predictive judgments" of the legislature. The Court explained the deference accorded to congressional action is limited to assuring that "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. The State argues that we must accord this same deference to Proposition A adopted through the initiative process by the citizens of Missouri.
52
There are two obstacles in the path of the State's argument. First, as we have observed before, the voters may no more violate the Constitution than the legislature. Citizens Against Rent Control, 454 U.S. at 295, 102 S.Ct. at 436-37. Second, the deference to legislative enactments recognized in Turner Broadcasting System, --- U.S. at ----, 114 S.Ct. at 2471, requires that courts ascertain that the legislative body "has drawn reasonable inferences based on substantial evidence."
53
There is simply no evidence in the record identifying the source of Proposition A, whether it was an individual or group,16 the process of its development, nor the reasons for the particular dollar limits.17 Further, there is no evidence of the details of the campaign waged in support of the initiative. There is, simply put, a failure of proof as to any of the facts Turner Broadcasting System would require that we consider to justify according deference.
54
Whether the deference Turner Broadcasting System requires for acts of Congress extends to the acts of the state legislative body is an issue not before us to decide. Legislative bodies consist of elected representatives sworn to be bound by the United States Constitution, and their legislative product is subject to veto by the elected executive, either President or Governor. The process of enactment, while perhaps not always perfect, includes deliberation and an opportunity for compromise and amendment,18 and usually committee studies and hearings. These are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative. On the evidentiary showing before us, there is no justification to accord Proposition A the deference that Turner Broadcasting System requires for congressional action. See Yniguez v. Arizonans for Official English, 69 F.3d 920, 930-31 (9th Cir.1995) (en banc) (noting ballot initiative lacked legislative findings and was not subjected to extensive hearings or analysis).
V.
55
In conclusion, we hold that the campaign contribution limits in Proposition A, Mo.Ann.Stat. Sec. 130.100, are not narrowly tailored to meet the compelling state interest of limiting the influence of corruption associated with large campaign contributions, and is, therefore, unconstitutional. We reverse the decision of the district court and remand the case to the district court for the entry of judgment permanently enjoining the State and the Missouri Ethics Commission from implementing, enforcing, or acting in reliance upon section 130.100.
1
Proposition A provides:
There shall be the following limitations on campaign contributions:
(1) No person or committee shall make a contribution to any one candidate or candidate committee with an aggregate value in excess of:
(a) $100 per election cycle per candidate in districts with fewer than 100,000 residents[.]
(2) [sic] $200 per election cycle per candidate, other than statewide candidates, in districts of 100,000 or more residents. For purposes of this section "statewide candidates" refers to those candidates seeking election to the office of Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer and Secretary of State.
(3) [sic] $300 per election cycle per statewide candidate.
(2) No person, entity or committee shall make a contribution to any other persons, entities or committees for the purpose of contributing to a specific candidate which when added together with contributions made directly to the candidate or to the candidate's committee, will have an aggregate value in excess of the limits stated in section 1.
(3) No candidate or candidate committee shall solicit or accept any contribution with an aggregate value in excess of the limits stated in this section.
(4) For purposes of this section the term "candidate" shall include the candidate, the candidate's treasurer, and the candidate's committee and any contribution to the candidate's treasurer or candidate committee shall be deemed a contribution to the candidate.
Mo.Ann.Stat. Sec. 130.100.
2
Other provisions of Senate Bill 650 and Proposition A were the subject of litigation in Shrink Missouri Government PAC v. Maupin, 892 F.Supp. 1246 (E.D.Mo.1995). We heard the appeal in that case on the same day as this appeal. See Shrink Mo. Gov't PAC v. Maupin, 71 F.3d 1422 (8th Cir.1995)
3
An election cycle is "the period of time from general election for an office until the next general election for the same office." Mo.Ann.Stat. Sec. 130.011 (Vernon Supp.1995). Thus, an election cycle includes the primary and general election
4
This issue was not before the district court. However, the district court in Shrink Missouri Government PAC, 892 F.Supp. at 1251, addressed the applicability of Proposition A to the candidate's own contributions. The district court found that when Proposition A and Mo.Rev.Stat. Sec. 130.011(12)(a) (1994) are read together, the statute limits a candidate's ability to spend his own money on his campaign. Id. Finding that Buckley prohibits a limit on the amount a candidate may contribute to his own campaign, the district court enjoined the application of section 130.011(12)(a) to the Proposition A contribution limits. Shrink Mo.Gov't PAC, 892 F.Supp. at 1251. We affirmed this holding in Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 1424-25
5
In Buckley, 424 U.S. at 27 n. 28, 96 S.Ct. at 638 n. 28, the Court cites the court of appeals discussion of such abuses in Buckley v. Valeo, 519 F.2d 821, 839-40 nn. 36-38 (D.C.Cir.1975) (per curiam). The court of appeals listed examples of large contributions including: dairy organizations pledging two million dollars to the Nixon campaign in an effort to schedule a meeting with White House officials regarding price supports, id. at 839 n. 36; contributions from the American Dental Association to incumbent California congressmen, id. at 839 n. 37; contributions by H. Ross Perot, whose company supplied data processing for medicare and medicaid programs, to members of the House Ways and Means Committee, the Senate Finance Committee, and the House Appropriations Committee, id.; and large contributions by those seeking ambassadorial appointments from President Nixon, id. at 840 n. 38
6
In its amicus brief, The Association of Community Organizations For Reform Now (ACORN) adds the two interests not reached in Buckley to justify the contribution limits in Proposition A. ACORN includes equalizing the relative ability of all citizens to affect the outcome of elections as additional justification for the Proposition A limits. This latter interest is close to running afoul of the Court's statement in Buckley, 424 U.S. at 48-49, 96 S.Ct. at 648-49, that restricting "the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment...." See also Shrink Mo. Gov't PAC, 71 F.3d at 1426-27. In addition, ACORN states that supporters of Proposition A sought to change the nature of local campaigns away from "hot button sound bites" in thirty-second television commercials toward a substantive discussion of the issues. As laudable as this interest may appear, these comments, on their face, manifest a content based restriction on expression and association. See Turner Broadcasting Sys., --- U.S. at ----, 114 S.Ct. at 2459 (discussing content based restrictions)
7
The Proposition A limits stand alone, as Missouri does not provide public funds for campaign purposes, unlike the United States and a number of other states
8
Employing our analysis in Day, the amicus brief of the American Civil Liberties Union points out that after adjusting for inflation, Proposition A's $300 limit is 6 percent of the limit per election cycle considered in Buckley, the $200 limit is 4 percent of the Buckley limit per election cycle, and the $100 limit is only 2 percent of the Buckley limit per election cycle
9
Montana and Oregon recently adopted these restrictive contribution limits by initiative. See Mont.Code Ann. Sec. 13-37-216 (Supp.1995); 1995 Or.Laws 1, 3. The Montana limits are on a per election basis, but when they are converted to an election cycle basis, the limits are: (1) $800 to candidates filed jointly for the office of Governor and Lieutenant Governor, (2) $400 to candidates in a statewide election other than Governor and Lieutenant Governor, and (3) $200 to candidates for any other public office. Mont.Code Ann. Sec. 13-37-216. When similarly considered, the Oregon limits are: (1) $1,000 to a candidate for "Governor, Secretary of State, State Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of the Bureau of Labor and Industries or judge of the Supreme Court, Court of Appeals or Oregon Tax Court" and (2) $200 to a candidate for State Senator or State Representative. 1995 Or.Laws 3
10
The ACORN amicus brief also argues that the Proposition A limits are necessary and narrowly tailored, citing the Dewey Crump and William Webster scandals. Dewey Crump was a Missouri State Representative accused of sponsoring legislation in exchange for kickbacks. William Webster was Missouri's Attorney General who pleaded guilty to a charge of conspiracy to misuse state property
11
On an election cycle basis, the contribution limits contained in Proposition A and Senate Bill 650 compare as follows:
-------------------------------------------------------------------------------
Office Senate Bill 650 Proposition A Percentage of
Senate Bill
650
-------------------------------------------------------------------------------
Statewide Races $2,000 a $300 b 15%
State Senator $1,000 c $200 d 20%
State Representative $500 e $100 f 20%
Other Races:
Less Than 100,000 Pop. $500 g $100 h 20%
100,000 to 250,000 Pop. $1,000 i $200 j 20%
More Than 250,000 Pop. $2,000 k $200 l 10%
-------------------------------------------------------------------------------
a Mo.Rev.Stat. Sec. 130.032.1(1).
b Mo.Ann.Stat. Sec. 130.100(3).
c Mo.Rev.Stat. Sec. 130.032.1(2).
d Mo.Ann.Stat. Sec. 130.100(2). Missouri State Senate districts consist of
approximately 150,000 people. 1995-96 State of Missouri Official Manual, at 123.
e Mo.Rev.Stat. Sec. 130.032.1(3).
f Mo.Ann.Stat. Sec. 130.100(1)(a). Missouri State Representative districts consist
of approximately 30,000-33,000 people. 1995-96 State of Missouri Official Manual,
at 184-85.
g Mo.Rev.Stat. Sec. 130.032.1(4).
h Mo.Ann.Stat. Sec. 130.100(1)(a).
i Mo.Rev.Stat. Sec. 130.032.1(5).
j Mo.Ann.Stat. Sec. 130.100(2).
k Mo.Rev.Stat. Sec. 130.032.1(6).
l Mo.Ann.Stat. Sec. 130.100(2).
12
The races were (1) the 1994 State Auditor's race, (2) the 1992 Twenty-Seventh District State Senate race, and (3) the 1992 Tenth District Missouri House of Representatives race. The State selected these sample races because they were among the races with the highest contributions
13
19.5 percent is actually too low because the State's exhibit is based on the $1,000 per election limit in Senate Bill 650, and not the $2,000 limit per election cycle. The State's exhibit failed to show the actual number of contributors giving more than the $300 Proposition A limit but less than the $2,000 election cycle limit in Senate Bill 650. The State's exhibit showed that 19.5 percent of the contributions were between $301 and $1,000, and 8.0 percent were more than $1,000. The exhibit does not indicate what percent of the contributions over $1,000 should also be included as being within the $2,000 Senate Bill 650 election cycle limit. While the percentage is undoubtedly higher than the 19.5 percent set out above, the precise amount is not shown
14
This is the only race where the exact percentage of contributors giving more than the Proposition A limit but less than the Senate Bill 650 limit on an election cycle basis may be determined from the data presented by the State
15
Again, the State's calculation is based on the $250 per election limit in Senate Bill 650, and not on the $500 limit per election cycle. The State's exhibit showed that 19.0 percent of the contributions were between $101 and $250, 15.7 percent were between $251 an $1,000, and 0.9% were more than $1,000. We have no way of knowing what portion of the contributions between $251 and $1,000 fell below the $500 limit per election cycle. Undoubtedly, some of these contributions should be included as between the Proposition A and Senate Bill 650 limits
16
Only the amicus briefs identify the sponsors and participants in the initiative campaign for Proposition A. These include Missourians for Campaign Finance Reform, a coalition composed of the Missouri Public Interest Research Group, ACORN, the Missouri League of Women Voters, and United We Stand--Missouri
17
Proposition A differs from the initiative procedures in some states, which either require or permit the ballot materials describing the proposition to include a statement of the purposes and reasons for the enactment. There was no such statement with respect to Proposition A
18
Indeed the process of enactment of Senate Bill 650 demonstrates the back and forth action of both the House and the Senate, and considerable effort to achieve a conference substitute agreeable to both bodies
| {
"pile_set_name": "FreeLaw"
} |
444 F.2d 557
Ken M. DAVEE and Adeline B. Daveev.The UNITED STATES.Elizabeth Kline JORDAN and Lea Associates, Inc.v.The UNITED STATES.
Nos. 242-66.
Nos. 433-66.
United States Court of Claims.
June 11, 1971.
Morris J. Coff, Chicago, Ill., attorney of record, for Ken M. Davee and Adeline B. Davee, David D. Rosenstein, Fink, Coff & Nudelman, Chicago, Ill., of counsel.
Andrew B. Young, Philadelphia, Pa., for Elizabeth Kline Jordan and Lea Associates, Inc., Robert C. Lea, Jr., Philadelphia, Pa., attorney of record, Hart, Childs, Hepburn, Ross & Putnam, Philadelphia, Pa., of counsel.
W. Stephen McConnell, Washington, D. C., with whom was Asst. Atty. Gen. Johnnie M. Walters, for the United States. Philip R. Miller, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
OPINION
PER CURIAM:
1
This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendations for conclusions of law under the order of reference and Rule 134 (h). The commissioner has done so in an opinion and report filed on July 28, 1970. Exceptions to the commissioner's opinion, findings of fact and recommended conclusions of law were filed by plaintiffs in No. 433-66 and defendant and the case has been submitted to the court on oral argument of counsel and the briefs of the parties.
2
Since the court agrees with the commissioner's opinion, findings of fact and recommended conclusion of law, with the deletion of matter in the opinion no longer pertinent to the case, it hereby adopts the same, as modified, as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiffs in No. 242-66 are entitled to recover and judgment is entered for them with the amount of recovery to be determined pursuant to Rule 131(c). Defendant is entitled to recover on its counterclaim in No. 433-66, however, the entry of judgment thereon is deferred pending determination of plaintiffs' case in chief in that litigation.
3
Commissioner Bernhardt's opinion, with the deletion of matter no longer pertinent, is as follows:
4
The common primary issue in these two companion petitions concerns the tax treatment to be accorded the consideration in the sale of a going business by plaintiff Davee (hereafter denoting husband and wife coplaintiffs) in the one petition to plaintiff Lea in the other petition,1 particularly wherein a portion was specifically allocated by agreement of the parties to a covenant not to compete. The stakeholding Government, which originally opposed the taxpayers' conflicting contentions on mutually inconsistent grounds, now opts for the Davee view that the sale of all but the covenant not to compete was a capital transaction and taxable as such, and opposes Lea's position that the entire sale resulted in ordinary income to Davee and amortizable deductions to Lea because (per Lea) the dominant if not sole asset bought by Lea and sold by Davee was the later's covenant. A secondary issue affecting only the Davee petition is the tax treatment for payments he made to a French concern for assembling data to launch a new market research business serving the French market.
I — Covenant Not To Compete Issue
5
Essentially we have two concerns (Lea and Davee) which, in 1962, were sole competitors in providing a particular market research service to large American pharmaceutical and ethical drug manufacturers in the form of periodical publications which, based upon continuous surveys compiled from nationwide panels of representative physicians reported to their respective customers the fluctuating professional response to, and the use and effectiveness of, various drugs, presumably as a basis for determining trends which would dictate future research, manufacturing and sales efforts. While each of the competing services duplicated the other's principal purpose, gathered its statistical data in comparable ways through an elaborate and expensive network of assistants in the healing profession such as doctors and interns, and computerized the myriad data thus obtained in coded form for customer consumption, each service had its own stable of customers and varied somewhat as to contents, format, and title. Thus Lea's publication was known as "National Drug and Therapeutic Index" (NDTI) and Davee's was "Physicians' Panel".
6
By 1962 it became apparent that the number of potential customers in the drug and pharmaceutical industry was not sufficient to support comfortably both NDTI and Physicians' Panel. Of the limited number of customers for this expensive service ($28,000 per year) Davee then had 18 and Lea, which had fewer, was gradually nibbling away at Davee's roster of customers. Physicians' Panel was only one of several profitable marketing services in generically related fields owned and conducted by Davee.
7
In 1962 Lea made overtures to purchase Davee's Physicians' Panel. The record of these negotiations over a period of several months, as reported in annexed findings 15 through 22, contains offers by Lea, counteroffers by Davee, and a series of amendments, deletions, additions, etc., culminating in two companion documents — a sale agreement of May 31, 1962 and a letter agreement of June 1, 1962. Throughout negotiations the parties had consulted with their respective tax counsel as to the tax ramifications of the transaction, and it cannot be said that either was unaware of what he was doing. Nor is there a hint of fraud, duress or mistake, or even misunderstanding, in the final arrangements they perfected or in the negotiations preceding them. These were sophisticated and informed businessmen who fully understood the legal effect of their undertaking, particularly as to resulting taxes, and without doubt the agreement was reached on the basis of prospective profits and earnings after taxes.
8
The sale agreement described Davee's Physicians' Panel (section 1), referred to Lea's wish to expand the NDTI service by "purchasing" Physicians' Panel (section 2), mentioned Davee's agreement to "sell" and Lea's agreement to "buy" Physicians' Panel (section 3), permitted Davee to continue to operate his other marketing research services but prohibited him for five years from soliciting or obtaining any data from physicians in the United States with specific exceptions not here germane (section 4), stipulated a purchase price of $320,000 payable in cash and installments over five years (section 5), prohibited Davee from collecting any further data for Physicians' Panel and required him to furnish Lea his past reports, casebooks, and other material concerning operation of Physicians' Panel within prescribed times so that Lea could "utilize these data and materials in the operation of its NDTI service and the business sold hereunder" (section 6), provided a $37,500 bonus to Davee for consummating the deal by July 6 or $18,750 by October 5, 1962 (section 7), provided forfeiture to Davee of both the Physicians' Panel and NDTI on Lea's default of the purchase notes (section 8) and, reciprocally, a cancellation of the notes and a return to Lea of all amounts paid Davee thereunder upon default by Davee of his obligations under the contract (section 9), assumption by Lea of Davee's obligations (nil) to his Physicians' Panel subscribers (section 11), and a commission to Davee if Physicians' Panel subscribers switched to NDTI prior to the consummation date (section 12). Repeated references in the sale agreement to the fact of purchase and sale leave no room for doubt that, at least in form, the parties contemplated the sale of a going business. It is worthy of note that the sale agreement did not allocate any portion of the purchase price to a covenant not to compete, nor contain any allocation to the covenant of Davee in section 4 not to solicit or obtain reports or data from physicians in the United States, nor did it mention goodwill by name.
9
The letter agreement of June 1, 1962, which was executed contemporaneously with the sale agreement, provided for the payment of compensation of $6,000 per year for five years for the consulting services of Davee and his wife. It also contained a payment in the event of death provision, and the following covenant not to compete which is at the heart of this litigation:
10
It is also understood that during the five years following the consummation date, neither of you [i.e., neither Davee nor his wife] will engage directly or indirectly as owner, manager, operator or associate or in any other capacity in the operation or control of any panel based on data obtained from physicians within the United States of America, nor will anyone employed by you engage in the operation or control of such a panel in the course of such employment. * * *
11
There is no particular significance to be derived from the fact of two separate but contemporaneous instruments, a sale agreement and a letter agreement. Whatever result they achieved by the separation could have been equally accomplished by a merger of the two documents into one. Merged or not, the separate allocation in the letter agreement to a covenant not to compete could be deemed to subsume the non-competition language in section 4 of the sale agreement. Further, the record reflects that, despite the literal wording, the $30,000 consideration for the letter agreement was almost exclusively for the covenant not to compete expressed therein. The consulting services proffered by Davee and his wife, and the payment-in-the-event-of-death provision, were only of fringe significance and value, and why they were included in the letter agreement along with the covenant is not quite clear.
12
The covenant not to compete underwent several metamorphoses in the course of negotiations before assuming its final form. In the initial draft of an agreement prepared by Lea a five-years' covenant not to compete was included, to which Lea proposed allocating three-sevenths of the contract price. Lea did not want to include goodwill in the description of assets proposed to be transferred because goodwill could not be depreciated for tax purposes. Davee rejected the proposed allocation to the covenant and could not think of a basis for allocating a portion of the contract price for that purpose; moreover, he had been advised by counsel that such a covenant would be illegal. Davee submitted a revised draft to Lea which contained a covenant not to compete, but no price allocation was given to it. Lea countered with a draft which included a three-years' covenant not to compete without allocation of purchase price, and expressed concern that the tax authorities would assign a value to the covenant if the parties did not do so themselves. Davee then responded with a revised draft of the sale agreement omitting the three-years' covenant not to compete but incorporating it in a separate letter agreement along with a provision for the part-time consulting services of himself and his wife for three years. The parties never contemplated that Davee and wife would actually render any substantial services as consultants to Lea, and the services rendered later were minimal. The letter agreement proposed a payment of $30,000 by Lea for the promises it included, and the $350,000 sale agreement consideration was correspondingly reduced to $320,000. The parties then entered into the sale agreement and letter agreement previously described, which followed the final drafts except for increasing the three-years' covenant not to compete and the consulting services provision to five years instead of three, and altered the installment payments for the letter agreement to $6,000 per year for five years. The parties fully understood and intended that the $30,000 consideration for the covenant was to be treated as ordinary income to Davee and a deductible expense to Lea.
13
Thereafter Davee earned the $37,500 bonus for early consummation offered by Lea by canceling the subscriptions to Physicians' Panel promptly and turning over to Lea the office records and data. The chief value of the data to Lea was in effectively discouraging Davee from reentering the field by depriving him of his data. Lea unilaterally assigned a subjective value of $75,000 to the data several months following the sale, and had little practical use of it other than as stated. Lea did not use any individuals on Davee's list of interns and physicians who had contributed to the information in Physicians' Panel. No customer contracts, nor the names of Physicians' Panel and Davee, were transferred with the sale. Lea's principal purpose in the purchase was the expectancy that, with Davee eliminated, the customers of Physicians' Panel would become NDTI customers. On the other hand, Davee considered that he had sold a going business. Davee's books were not audited by Lea to ascertain net income figures, no receivables were transferred, and assumed liabilities were nonexistent.
14
Income tax returns filed by Davee for 1962 and 1963 reported payments received from Lea under the sale agreement as capital gains on an installment basis, and those received under the letter agreement as ordinary income. The District Director of Internal Revenue assessed deficiencies on the ground that all of the amounts received from the sale of Physicians' Panel were ordinary income. Davee paid the deficiencies and more than six months have elapsed from the date of his refund claims, without a decision having been rendered. The deficiencies paid and the refund claims therefor include amounts for both the primary issue and a secondary issue to be discussed, infra.
15
Having deducted for tax purposes the payments made to Davee in 1962 under the sale and letter agreements, Lea consented to deficiency assessments made by the Internal Revenue Service which were based on the contention that the payments made as described were improperly deducted since the purchase of Davee's business was a capital transaction. In response to Lea's suit herein for refund of assessments which had been made and paid for an unrelated earlier transaction, the defendant filed a counterclaim for the unpaid assessments arising from the Davee purchase. The initial ambivalence of the Government in its opposition to both the Lea and Davee contentions is apparent, and rested on the standard burden of proof obligation which taxpayers bear in refund suits, but it was cured ultimately by the Government's announced preference for the Davee contentions.
16
To put the legal problem in perspective: The sale of a going business gives rise to capital gain or loss since it is the sale of a capital asset. When a properly qualified covenant not to compete for a specified period is entered into as part of the sale of a going business under particular conditions, the portion of the consideration attributable to the covenant is normally taxable as ordinary income to the seller, and the purchaser may deduct the cost over the period of the covenant's ascertainable life. This is so because the consideration is for services, albeit in the negative form of forbearance from future competitive conduct. A sale entailing goodwill results in capital gain to the seller, but the buyer may not depreciate the goodwill because it is an intangible asset whose useful life is not susceptible of determination. All excess of the sale price over the value of the tangible assets transferred should be assigned to the covenant not to compete and other intangibles, the latter habitually being goodwill or its equivalent. It is conceivable, but rare, that a "naked" covenant not to compete (i. e., one unaccompanied by the sale of the assets of the related business) can be given in the total absence of goodwill.
17
The rule of law deemed to govern the facts of this case is as follows: If the parties to the sale of a going business comprising tangible and intangible assets, including goodwill, or its equivalent, bargain in good faith at arms' length, and without mistake, fraud, or duress, over the allocation of a specific part of the purchase price to the seller's covenant not to compete,2 and both the covenant and the value allocated to it possess economic reality independent of tax advantage as prime motivation in that the seller surrenders a right which he is capable of exercising for a price which is realistic and reasonable in the circumstances of the particular transaction, then the value so allocated to the covenant is taxable as ordinary income to the seller and is deductible by the buyer, even though the purpose of the covenant is to effectuate and protect the passage of pseudo goodwill of which it is an ancillary and inseparable component. The balance of the sale is then treated as a capital transaction. This is the conclusion compelled by the weight of the case law and necessary to provide the taxpaying business community with a stable and predictable basis for the tax consequences of their contemplated transactions. In passing it is only fair to comment that while the solution is practical it is syllogistically imperfect in that it accepts the severability of goodwill from a covenant not to compete solely because of the manner in which the latter is arrived at and the form in which it is couched, whereas except in the case of the sale of a naked covenant, it is difficult to conjure an effective transfer of goodwill which permits the seller to frustrate it by continuing to compete for the trade of his former customers.3 In fact, the sale of goodwill carries with it by implication alone the seller's refrainment from competition since his competition after the sale may constitute a breach of the agreement to transfer goodwill. In contract law such a covenant is enforceable only if given to protect the conveyance of goodwill.4
18
No rules of unerring application derive from the considerable body of litigation concerning the taxation of the consideration given and received for covenants not to compete in connection with the transfer of goodwill incident to the sale of a business. Legal thought divides into three general approaches employing the doctrines of severability,5 substance over form,6 and form over substance,7 each of which schools has its supporting judicial precedents and scholarly adherents and dissidents.8 The facts of the given case governing the result do not necessarily conform to the models representing each school, and offer a basis for frequent departure. The intentions of the parties as evidenced in their agreements, the form in which those intentions are expressed, the legitimate desire of taxpayers for a coherent and foreseeable tax consequence, the Government's insatiable thirst for revenue, the antithetical interests of buyer and seller, and the economic realities of each transaction combine to shape what is in the final analysis a subjective expression of the sitting court's predilection and philosophy.
19
The legal conclusion announced as being applicable to the instant situation rests upon considerations peculiar to its set of facts. Each of the parties was, or should have been, fully cognizant of the probable tax results of their deal, and are therefore presumed to have intended them. Each party was a free agent, neither mistaken nor coerced. Section 9 of the sale agreement conditioned payment of Lea's installment purchase notes on Davee's refraining from soliciting or obtaining data from physicians in violation of section 6.9 The antithetical positions of the parties as buyer and seller tend to produce a roughly countervailing effect on tax revenues, in that the loss in tax revenue from the seller is approximately met by the gain in revenue from the buyer. At least the Government has not said otherwise, but instead has adopted in its brief the following laissez-faire position favorable to Davee:
20
The Government takes the view that where the parties to a transaction involving the sale of a business have entered into a separate written agreement spelling out the precise amount to be paid for a covenant not to compete, the Court should not then go behind the agreement at the insistence of either party unless there is shown fraud, duress, or undue influence such as would be necessary to alter the terms of the contract itself. Commissioner [of Internal Revenue] v. Danielson, 378 F.2d 771 (C.A.3d, 1967). This is the rule we urge in these cases.
21
The agreement of the parties on the covenant not to compete had economic reality, in that Davee, the covenantor, surrendered a valuable right to compete, when he was fully capable of competing for the indefinite future. The court is in a less favorable position than the parties to judge the economic reality of the value assigned by them to the covenant. Undoubtedly, the amount was agreed upon by the parties with the tax impact in mind. Where they do so it is rarely the province of the court to revise their agreement in the absence of a shocking disproportion or manifest injustice to the public treasury, in which case the Government would be expected to remark it.10
22
Lea's position urging that the entire purchase price should be allocated to the covenant not to compete is extreme. It is based upon the fact that Lea genuinely had little or no use for Davee's services or his back records, except to deprive Davee of the latter as a further impediment to his competitive reentry, on top of other sanctions imposed by the agreements. Lea's argument to this end not only repudiates the terms of the written agreements and the record of negotiations leading thereto,11 but also would expose the transaction to a speculative risk of restraint-of-trade invalidity from the viewpoint of public policy. If so, Lea's right to claim tax deductions by virtue of an agreement which is in violation of public policy would be in possible jeopardy.12
23
Furthermore, Lea's position if adopted would in effect amount to a rewriting of the contract between the parties so that it would produce a net financial result contrary to their clear intentions. It would, for example, be unrealistic to expect that Davee would have been interested in selling to Lea for a net-after-tax figure of approximately $100,000 a going — though dwindling — business which netted him about $90,000 per year, yet this would be the estimated consequence to Davee were Lea's argument to prevail. It is natural to assume that the sale appealed to Davee because his income from other sources reduced his net-after-tax income from Physicians' Panel to a figure not sufficiently attractive to justify its continuation in comparison to his retained after-tax capital gain resulting from the sale. On the other hand, it is equally obvious that the prospective revenues from Davee's former customers for the Physicians' Panel service which Lea hoped to acquire for NDTI involved little more expense for Lea than Lea's expenses of servicing its existing customers for NDTI. While it would be to Lea's financial advantage to be permitted to deduct from gross income all payments made for the purchase of Physicians' Panel, precluding that annual privilege could eventually result in beneficial long-term capital gain treatment to Lea by increasing the cost basis of an NDTI business swollen by the acquisition of Physicians' Panel customers.
24
Other than the covenant not to compete, the nature of the intangible asset sold by Davee to Lea defies precise characterization. For transparent reasons Lea considers the entire consideration for the purchase price to have been the covenant. Davee terms the non-covenant intangible thus transferred to be something in the nature of goodwill. The Government more aptly styles it "market access" and points out that, to the extent Lea was able to acquire Davee's former customers, Davee's covenant not to compete for five years conferred for practical purposes "market access" or "goodwill" of a more or less permanent nature, or so long as Lea provided services desired by NDTI customers. This is on the theory that a five-year absence by Davee would effectively deter his resumption of competition with NDTI, particularly in view of his deprivation of prior records. The fact that in the precontract negotiations Lea refused to purchase goodwill, and that no reference to goodwill is made in the agreements themselves, merely reflects Lea's awareness that goodwill is not a depreciable asset, rather than establishing the intangible sold to be something other than a species of goodwill in substance. In contending that the sale constituted in substance a sale of Davee's covenant not to compete, Lea relies heavily on section 4 of the sale agreement which prohibited Davee for five years from soliciting or obtaining any data from physicians in the United States. Contrasting this provision with the related covenant contained in the letter agreement discloses the inadequacy of section 4 of the sale agreement as a fully restrictive covenant by Davee not to compete. For example, strictly interpreted as such covenants must be, it would not have prevented Davee from obtaining and using such data indirectly through the medium of an agent or his wife. Lea also argues that the deliberate non-transfer of the names of Davee and Physicians' Panel in connection with the sale indicates that no goodwill was involved in the sale. The explanation is that Lea had no use for the title of Physicians' Panel nor for Davee's name and services, although the services of Davee and his wife were nominally included in the letter agreement without any intention on the part of Lea to use them in any substantial degree. Davee's blessing in the form of his disappearance rather than his active help was Lea's sole object.
25
In this case the court can justifiably disregard the personal motives of Lea in purchasing Davee's business since, even if true, to the extent Lea's motives differ from the contract terms of what was done the latter will control. Thus, if Lea's prime purpose in the transaction was to eliminate Davee's competition, in purchasing Davee's business rather than solely a covenant not to compete Lea exercised a choice of forms which involved the purchase of something over and above Davee's naked covenant. Whatever that something was, particularly as to intangibles, clearly meant to Davee the surrender of his business, with the covenant as a separate but ancillary benefit conferred on the purchaser. Even if Lea's contention is correct that the substance of the entire sale was of a covenant not to compete to the virtual exclusion of anything else of value and contemplated use, in weighing the respective merits of preserving the legal theory or recognizing the equitable consequences of not doing so, the practical aspects of the latter will dictate the decision.
II — "Pharmacies-France" Issue
26
In 1962 Davee commenced a new marketing research business consisting of the periodic publication of a report entitled "Pharmacies-France" containing detailed statistical information on the ethical drugs sold in France. The report was based upon data furnished by a co-operating group of French drugstore owners and operators. In 1962 Davee paid a French management consulting firm $12,257.50 for its services in obtaining sources of data for "Pharmacies-France", and in 1963 $2,353.55 was paid to the same firm for similar services. Not only for the French Panel, but for all reports published by Davee, it was always necessary to recruit people who would cooperate in furnishing data. Constantly, certain sources of data were no longer willing or able to supply data, and these sources had to be replaced by others.
27
The particular services for which Davee paid the French firm were for enlisting the cooperation of some 400 French pharmacies, securing replacements as needed, reimbursement for payments to the cooperating sources, and monthly visits to microfilm records.
28
On their Federal income tax returns for 1962 and 1963, the plaintiffs deducted these amounts paid to the French firm as ordinary and necessary business expenses. The District Director of Internal Revenue, adopting a Revenue Agent's report for the years in question, determined that such amounts were —
29
* * * [Expenditures] * * * associated with the start-up of Marketing Research for the collection of data in France.
30
This expenditure incurred by the taxpayer represents a capital expenditure that is not subject to depreciation due to its indefinite life.
31
Accordingly, the deductions were disallowed. Deficiencies were assessed and paid. Refund claims timely filed by plaintiff have not been decided despite the passage of more than six months, and timely suit was instituted as a count in the instant petition.
32
Davee contends that the costs in issue were deductible in full as ordinary and necessary business expenses within the meaning of section 162 of the Internal Revenue Code of 1954, as recurring expenses, while the Government contends that the expenses were in connection with permanent improvements and benefits made to increase the value of the property, whose deduction is forbidden by section 263(a) (1) of the 1954 Code.
33
The Government's contention is based largely upon the disproportion between the 1962 expenses ($12,257.50) and those for 1963 ($2,353.55), inferring a lack of the recurrency required to support Davee's position. The disproportion suggests that only an allocable portion of such expenses were recurrent in fact, namely, those attributable to replacement, payment, and regular servicing of drugstore contributors, as opposed to the initial enlistment of a roster of such trade contracts. The burden of proving the allocation is, of course, on the taxpayer.
34
To extricate himself from the effect of section 263(a) (1), supra, Davee cites section 173 of the Code which exempts from section 263 all expenditures to "establish, maintain, or increase the circulation of a newspaper, magazine, or other periodical", with exceptions not here relevant. Assuming Davee's French service to be a periodical, section 173 is specifically addressed to circulation expenses and not to the expense of establishing the periodical itself. The contributing drugstores constituting the source nucleus of the French service cannot be remotely equated to the subscribers to a publication. Subscribers are customers of a publication. Davee's potential "subscribers" were French pharmaceutical concerns, not the contributing drugstores.
35
Analogically there is the same approximate relationship between a news reporting staff and its newspaper employer on the one hand and Davee's drugstore network and his publication on the other. In each case the publication obtains its raw data from these sources, and without such data the newspaper could no more obtain subscribers than could Davee's service obtain customers. Thus, there is in each instance a remote relationship of the data-gathering function to the "circulation" structure of each publication, but the circulation expenses contemplated by section 173 of the Code demand something more proximately related to circulation, such as expenses of advertising, solicitation, distribution and the like aimed at establishing, maintaining, or increasing the circulation.
36
The theory of capital expenditures is described by Mertens, Law of Federal Income Taxation, at § 25.20, pp. 96-98, as follows:
37
Section 162 of the 1954 Code is intended primarily, although not necessarily, to cover expenditures of a recurring nature where the benefit derived from the payment is realized and exhausted within the taxable year. Accordingly, if as the result of the expenditure the taxpayer acquires an asset which has an economically useful life beyond the taxable year, or if it secures a like advantage to the taxpayer which has a life of more than one year, no deduction of such payment is allowable as a business expense. In such event, to the extent that a deduction is allowable, it must be obtained under the provisions of the Code which permit deductions for amortization, depreciation, depletion, or loss. * * *.
38
And at p. 102 of § 25.20 Mertens continues:
39
Occasionally, an expenditure may represent in part a business expense and in part a non-business expense, which latter might or might not be a capital expenditure. In such cases it is necessary to make an allocation so as to determine the amount deductible under this provision of the statute. The burden of proving the proper allocation of the total payment is on the taxpayer.
40
[Footnotes omitted.]
41
The issue in each case is necessarily a factual one. It is reasonable to conclude in this case that the expenditures made by Davee in 1962 were largely non-recurrent and, therefore, non-deductible, and those made in 1963 were recurrent and deductible. While the plaintiff has the burden of proving the proper allocation, it is permissible to satisfy that burden by producing facts from which logical inferences can be drawn where by the nature of the issue literal proof would be inordinately difficult and out of proportion to the aim. Thus, in this instance, it is inferred that the 1962 expenditures were starting-up expenses associated with the establishment of a new venture in a limited marketing service field, and that the results of the expenditure that first year were primarily to establish a fluctuatingly permanent data basis for a publication good not only for that year but, with additions and deletions, for subsequent years. It is assumed that the major part of the 1962 expense represented the enlistment of the drugstore panel. This is corroborated by the vastly greater expense in 1962 than in 1963, and the excess is properly attributable in great part to the enlistment of cooperating drugstores. To the extent that a portion of such total expense in 1962 was for securing replacements as needed, or for reimbursement of expenses paid to the cooperating sources, or for monthly visits to microfilm records — all of which type of expenses would be, if proven, currently deductible as ordinary and necessary — the plaintiff has not undertaken an allocation and the court is not in a position to do so without rank guessing.
42
For consistent reasons all of the expense deducted in 1963 is considered to be ordinary and necessary in character, and therefore deductible, consisting as it undoubtedly did in largest part in rendering required services other than occasional recruitment of replacement drugstores.
43
The importance of this resolution of the issue to Davee is that if the expenses in question are not deductible as ordinary and necessary business expenses, they would not qualify for amortization deductions otherwise because the benefits they confer on the business lack a reasonably ascertainable useful life for spreading purposes. Thus, Davee would be permanently deprived of the benefit of using such costs in his annual tax equation, and would be left only with an increased cost basis when and if he eventually disposes of the business as a capital transaction.
44
It is believed that this solution is compatible with a 1921 ruling of the Commissioner in O.D. 1018, 5 Cum.Bull. 119, relative to the deductibility of amounts paid for data regularly used in a business supplying information to customers on a regular basis. There the problem concerned title abstract companies which must constantly obtain necessary data in order to conduct their business. The Commissioner stated:
45
Title abstract companies incur relatively large and continuous expenditures in keeping their plants up to date, such as the expense of adding and incorporating in the plant records that are being made daily in the various courts and in the Recorder's office.
46
These records which are added to and incorporated in the plant for the purpose of keeping it in up to date running order and preventing depreciation are in the nature of ordinary and necessary repairs. The expenses, therefore, incurred in making such records are current expenses, and as such are deductible for the year in which incurred and paid or accrued.
47
* * * * * *
48
The plaintiffs in Petition No. 242-66 are entitled to a judgment in accordance with this opinion and judgment should be entered for plaintiffs, with the amount to be determined pursuant to Rule 131(c). The defendant is entitled to judgment on its counterclaim in Petition No. 433-66; however, the entry thereof should be deferred pending determination of the plaintiffs' case in chief in that litigation.
Notes:
1
Elizabeth Kline Jordan and Lea Associates, Inc., are coplaintiffs in Petition No. 433-66. Jordan is a stockholder of her coplaintiff corporation. Plaintiffs in No. 433-66 will be referred to as "Lea" for convenience
2
There have been times when the court has disregarded the good faith agreement of the parties with respect to allocation of part of the purchase price of a business between goodwill and a covenant not to compete, and has substituted an allocation of its own (Levine v. C.I.R., 324 F.2d 298 (3rd Cir. 1963), aff'g 31 P-H Tax Ct.Mem. 410 (1962)), and other times when in the absence of a separate allocation by the parties the court has supplied one (Horton v. C.I.R., 13 T.C. 143 (1949), appeal dismissed on Commr.'s motion, 180 F.2d 354 (10th Cir. 1950)), and Melvin C. Miller, 33 P-H Tax Ct. Mem. 2079 (1964)
3
Mertens, Law of Federal Income Taxation, postulates in § 22.33 at p. 219 the inherent difficulty of envisaging a covenant not to compete which is severable from the goodwill which it is essentially designed to protectAnd see Schulz v. C.I.R., 294 F.2d 52 (9th Cir. 1961), aff'g 34 T.C. 235 (1960), which regarded such covenant as necessarily a contribution to goodwill. But Wilson Athletic Goods Mfg. Co. v. C.I.R., 23 P-H Tax Ct.Mem. 845 (1954), rev'd and rem'd, 222 F.2d 355 (7th Cir. 1955), comes close to being an example of a case where a covenant not to compete was not tied into goodwill since the purchaser had no visible use for the seller's goodwill in the form of the seller's name, customers, etc. In the case under consideration Lea had little or no use for Davee's goodwill as such in the conventional sense.
4
Madison, Tax Treatment of Covenants Not To Compete, 24 U.Miami L.Rev. 1 (Fall 1969), n. 4, at pp. 18, 19
5
Ullman v. C.I.R., 29 T.C. 129 (1957), aff'd, 264 F.2d 305 (2d Cir. 1959)But see Toledo Newspaper Co., 2 T.C. 794 (1943) and Toledo Blade Co. v. C.I.R., 11 T.C. 1079 (1948), aff'd 180 F.2d 357 (6th Cir. 1950), cert. denied, 340 U.S. 811, 71 S.Ct. 38, 95 L.Ed. 596, (1950).
6
Wilson Athletic Goods Mfg. Co. v. C.I.R., n. 3,supra. Annabelle Candy Co. v. C.I.R., 314 F.2d 1 (9th Cir. 1962).
7
Danielson v. C.I.R., 44 T.C. 549 (1965), vacated and rem'd, 378 F.2d 771 (3d Cir. 1967), cert. denied, 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967)
8
Madison,supra, n. 4.
9
Cf. Carboloy Co., 2 T.C. 1267 (1943).
10
Levine v. C.I.R.,supra, n. 2.
11
There is authority that such unilateral repudiation in order to obtain favorable tax treatment may constitute a breach of contract. Stern & Co. v. State Loan & Fin. Corp., 205 F.Supp. 702, 705-706 (D.Del.1962)
12
Cf. Hardin Mort. Loan Co. v. C.I.R., 137 F.2d 282 (10th Cir. 1943).
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/15/2017 09:10 AM CDT
- 422 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
State of Nebraska, appellee, v.
Patrick J. Combs, appellant.
___ N.W.2d ___
Filed August 4, 2017. No. S-16-798.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
tions of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
4. Criminal Law: Final Orders: Sentences. In a criminal case, the final
judgment is the sentence.
5. Final Orders. The three categories of final orders in Neb. Rev. Stat.
§ 25-1902 (Reissue 2016) are exclusive.
6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment
of acquittal is a criminal defendant’s request, at the close of the govern-
ment’s case or the close of all evidence, to be acquitted because there is
no legally sufficient evidentiary basis on which a reasonable jury could
return a guilty verdict.
7. Pleadings: Directed Verdict. A motion for judgment of acquittal is
simply another name for a motion for directed verdict of acquittal.
8. Motions to Dismiss: Directed Verdict. A motion to dismiss at the
close of all the evidence has the same legal effect as a motion for
directed verdict.
9. Directed Verdict: Motions for Mistrial: Time. A motion for judgment
of acquittal or motion for directed verdict is untimely if made after a
mistrial has been declared.
10. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution and
who, when the court overrules the dismissal or directed verdict motion,
- 423 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
11. Criminal Law: Final Orders. A judgment entered during the pendency
of a criminal cause is final when no further action is required to com-
pletely dispose of the cause pending.
12. Double Jeopardy: Pleadings. A plea in bar may be filed to assert any
nonfrivolous double jeopardy claim arising from a prior prosecution.
13. Pleadings: Final Orders: Appeal and Error. An order overruling a
plea in bar is a final, appealable order.
14. Double Jeopardy: Pleadings. A plea in bar may be used to raise a
double jeopardy challenge to the State’s right to retry a defendant fol-
lowing a mistrial.
15. Constitutional Law: Double Jeopardy. The 5th Amendment’s pro-
tection against double jeopardy applies to states through the 14th
Amendment to the U.S. Constitution.
16. Constitutional Law: Criminal Law: Double Jeopardy. The Double
Jeopardy Clause of the Fifth Amendment to the U.S. Constitution
prohibits a criminal defendant from being put in jeopardy twice for
the same offense and unequivocally prohibits a second trial following
an acquittal.
17. Double Jeopardy. The Double Jeopardy Clause’s prohibition on retrial
is not unequivocal when the first trial ends in a mistrial.
18. Motions for Mistrial. Where a mistrial is declared over a defendant’s
objection, he or she may only be retried if the prosecution can demon-
strate a “manifest necessity” for the mistrial.
19. Double Jeopardy: Motions for Mistrial. Where a mistrial is declared
at the behest of the defendant, the “manifest necessity” standard has no
place in the application of the Double Jeopardy Clause.
20. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys. The
narrow exception to the rule that where a defendant asks the court to
declare a mistrial, the Double Jeopardy Clause does not bar retrial, is
limited to those cases in which the prosecution’s conduct giving rise
to the successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.
21. Trial: Juries: Verdicts. A jury’s action cannot become a verdict until
it is finally rendered in open court and received and accepted by the
trial judge.
22. Trial: Verdicts. A verdict, to be of any validity, must be delivered in
open court.
23. Juries: Verdicts. A vote taken in the privacy of jury deliberations is not
a verdict.
- 424 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
Funke, JJ.
Wright, J.
NATURE OF CASE
The appellant, Patrick J. Combs, was charged with four
crimes in the district court for Lancaster County. His case
was tried to a jury. After deliberating for 3 days, the jury
reported that it was deadlocked. Combs moved for a mis-
trial, which the district court sustained. After the mistrial,
Combs discovered that, according to the presiding juror, the
jury had voted unanimously during its deliberations to acquit
him on three of the four charges, but mistakenly thought
it had to reach a unanimous verdict on all charges. Combs
moved for a judgment of acquittal, which the district court
overruled. Combs then filed a plea in bar, which the district
court overruled. Combs appeals the overruling of his plea in
bar on the ground that retrial of the three counts on which
the jury reportedly voted to acquit him would violate the
Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution. We affirm the district court’s order overruling
Combs’ plea in bar.
BACKGROUND
Combs was charged with four crimes in connection with his
financial dealings with Harold and Beverly Mosher. Combs
was charged with (1) attempted theft by unlawful taking, over
$1,500; (2) abuse of a vulnerable adult; (3) theft by unlawful
- 425 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
taking; and (4) unauthorized use of a financial transaction
device, over $1,500. The details of these allegations and the
evidence presented at trial are not relevant to this appeal.
A lengthy jury trial was held. At the conclusion of the
State’s evidence and again after the defense’s evidence, Combs
moved to dismiss. These motions were overruled, and the
case was submitted to the jury. During its deliberations, the
jury submitted several questions to the court in writing, which
the court answered. After 2 days of deliberations, Combs
moved for a mistrial, “largely out of concern that the time has
become fairly lengthy,” which motion the district court over-
ruled because the court “had no indication from the jury that
there’s a problem.”
On the third day, the court spoke with counsel for Combs
and the State and said, “The jury has submitted a question
. . . that reads, The jury in the above-entitled case requests the
court’s advice on how to proceed as the jury is unable to reach
a unanimous verdict at this time.” Combs renewed his motion
for mistrial. The district court overruled Combs’ motion and
gave the jury a supplemental instruction, over Combs’ objec-
tion, instructing the jury to continue deliberating and urging
the jury to continue trying to reach a verdict.
About 2 hours later, the district court received another note
from the jury, requesting advice and stating that it was “dead-
locked with no apparent ability to agree on a verdict.” The
court said, “This is the second communication I’ve had that
they’re deadlocked. I sent them to lunch after getting that com-
munication earlier. It seems like they mean it now.”
Combs’ counsel renewed his motion for mistrial, saying,
“[I]t is now quite apparent to me, you know, whether the ver-
dict is eleven to one for acquittal or eleven to one for convic-
tion or anything in between, that this jury has made it clear
that any further deliberations would not be likely to result
in a verdict.” Counsel for the State agreed that the jury was
deadlocked. The court said, “I don’t think we’re going to get
anywhere with this jury or [get] any further with this jury,” and
- 426 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
it declared a mistrial and dismissed the jury. The jury did not
complete the verdict form it was given by the court.
After the mistrial, Combs filed a motion for judgment of
acquittal. As to count 1, Combs argued that there was insuf-
ficient evidence presented by the State. As to the other three
counts, Combs’ counsel stated that he learned after trial that
the jury had unanimously voted in its deliberations to acquit
Combs on counts 2 through 4, but mistakenly thought it was
required to have a unanimous verdict on all counts.
Combs presented the affidavit of the presiding juror. The
presiding juror stated that she supervised the deliberations and
conducted the votes of the jury members. She said that the
jury voted unanimously to find Combs not guilty on counts 2
through 4. She said that following “extensive deliberations” on
count 1, the jury voted 11 to 1 to find Combs not guilty. She
said that she told the bailiff that “the jury had reached unani-
mous verdicts on 3 of the counts, without divulging which
counts or whether [it] found guilty or not on those, but that [it]
had deadlocked on the remaining count.” The presiding juror
assumed that this information was passed on to the judge. She
said that “[i]t was the jury’s general understanding from the
jury instructions provided . . . that [it] had to find unanimously
on all four counts, albeit separately guilty or not guilty on
each count.”
At the hearing on the motion for judgment of acquittal, the
State submitted two emails that were sent from other jurors
to the court, which potentially conflicted in part with the
affidavit of the presiding juror. The emails were not affidavits
and did not contain sworn testimony. In the first email, the
juror said that the votes to find Combs not guilty on counts
2 through 4 were preliminary votes and that he believed
the jurors were still free to change their minds. That juror
also wrote that a holdout juror said that he felt pressured
to vote not guilty. The juror confirmed in the email that the
jury mistakenly believed it had to find Combs guilty on all
four counts.
- 427 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
In the second juror email, the juror also said that the jury
“seemed to agree not guilty on three” of the counts. The juror
said that the holdout juror on the one count on which the jurors
disagreed said that he “‘went along’” with everyone else on
the other three counts.
The district court overruled Combs’ motion for judgment
of acquittal.
Combs then filed a plea in bar to prohibit the retrial of
counts 2 through 4 on the bases that the jury found him not
guilty on those counts and that retrial would violate the Double
Jeopardy Clause of the U.S. Constitution. The district court
overruled the plea in bar. Combs appealed.
ASSIGNMENTS OF ERROR
Combs asserts the district court erred in not sustaining his
plea in bar for counts 2 through 4, of which the jury reportedly
voted unanimously to acquit him. He also claims the district
court erred in failing to sustain his motion for judgment of
acquittal and failing to sustain his motion to dismiss at the
close of the evidence. He argues that the district court com-
mitted plain error in not inquiring whether the jury was dead-
locked on all or some of the counts. He also argues that “plain
error exists” by the presiding juror’s not publishing the jury’s
verdict for counts 2 through 4. Finally, Combs argues that the
district court erred in admitting opinion testimony from a care-
giver as to whether the alleged victim had capacity to execute
legal documents.
STANDARD OF REVIEW
[1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.1 On a question of law, an appellate court
reaches a conclusion independent of the court below.2
1
State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).
2
Id.
- 428 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
ANALYSIS
A ppellate Jurisdiction: Combs’
Assignments of Trial Error
Because Combs’ trial ended in a mistrial with no verdict,
there was no final order or judgment. Therefore, this court
lacks jurisdiction over Combs’ assignments of error arising
from his trial. The only final order in this case was the district
court’s overruling of Combs’ plea in bar.
[3,4] This court has stated many times that “for an appel-
late court to acquire jurisdiction of an appeal, the party must
be appealing from a final order or a judgment.”3 In a criminal
case, the final judgment is the sentence.4 Because Combs’ trial
ended in a mistrial, no sentence was issued. Thus, there is no
final judgment. Because there is no judgment in this case,
Combs may only appeal if there is a final order.
[5] Final orders have been defined by statute in Nebraska
since 1858.5 Under § 25-1902, the three types of final orders
which may be reviewed on appeal are (1) an order which
affects a substantial right and which determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after judgment is rendered.6 We have interpreted these three
statutory categories of final orders as exclusive.7
3
Heckman v. Marchio, 296 Neb. 458, 462, 894 N.W.2d 296, 300 (2017).
4
See State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015). See, also,
Neb. Rev. Stat. § 25-1911 (Reissue 2016).
5
John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001). See,
also, Neb. Rev. Stat. § 25-1902 (Reissue 2016).
6
In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).
7
See Heckman v. Marchio, supra note 3, 296 Neb. at 464, 894 N.W.2d
at 301 (rejecting judicially created collateral order doctrine that allowed
appeals of orders not final under three categories of § 25-1902 and quoting
Lenich, supra note 5, “‘Section 25-1902 specifies three types of final
orders, which implies that there are no others’”).
- 429 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
The district court’s overruling of Combs’ motions to dis-
miss and motion for judgment of acquittal were not final
orders.
Combs argues that “the Trial Court erred in failing to sus-
tain the motion for judgment of acquittal as to all Counts” and
that “the Trial Court erred in failing to dismiss the case at the
close of the evidence.” He argues that the court should have
dismissed the charges at the conclusion of the State’s evidence
and should have entered a judgment of acquittal on all counts
because the evidence was insufficient to submit the case to
the jury.
[6-8] A motion for judgment of acquittal is “[a] criminal
defendant’s request, at the close of the government’s case
or the close of all evidence, to be acquitted because there is
no legally sufficient evidentiary basis on which a reasonable
jury could return a guilty verdict.”8 A motion for judgment
of acquittal is simply another name for a motion for directed
verdict of acquittal.9 And a motion to dismiss at the close of all
the evidence has the same legal effect as a motion for directed
verdict.10 Thus, whether styled as a motion for judgment of
acquittal, motion for directed verdict, or motion to dismiss,
these motions all have the same effect when used to challenge
the sufficiency of the State’s evidence at the conclusion of the
State’s case or the conclusion of the evidence.
[9] Combs’ motion for judgment of acquittal was untimely
because it was filed after the court declared a mistrial. Because
a motion for judgment of acquittal is a motion for a directed
verdict, such a motion logically cannot be made after a trial
has ended in a mistrial.
8
Black’s Law Dictionary 1170 (10th ed. 2014).
9
See State v. Foster, 230 Neb. 607, 611, 433 N.W.2d 167, 169 (1988)
(citing case from another jurisdiction and “not[ing] that [that jurisdiction’s]
motion for acquittal is procedurally the same as our motion for a directed
verdict”).
10
Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017).
- 430 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
[10] Combs’ has waived his claim that the district court
erred in overruling his motions to dismiss. A defendant who
moves for dismissal or a directed verdict at the close of the
evidence in the State’s case in chief in a criminal prosecution
and who, when the court overrules the dismissal or directed
verdict motion, proceeds with trial and introduces evidence,
waives the appellate right to challenge correctness in the trial
court’s overruling the motion for dismissal or a directed verdict
but may still challenge the sufficiency of the evidence.11
[11] Here, Combs waived his right to challenge the over-
ruling of his motions to dismiss by proceeding with trial and
introducing evidence in his defense. And Combs cannot chal-
lenge the sufficiency of the evidence underlying a conviction
because no verdict was reached by the jury; there is no convic-
tion to challenge. Furthermore, the overruling of a motion to
dismiss is typically not a final order.12 As this court has said,
“‘A judgment entered during the pendency of a criminal cause
is final when no further action is required to completely dis-
pose of the cause pending.’”13 The order overruling the motion
to dismiss was not a final order because it did not “completely
dispose of” the case.
Because Combs sought and was granted a mistrial, he can-
not now challenge the district court’s failure to inquire whether
the jury was deadlocked on all counts. We point out that the
better practice would have been for the district court to have
inquired of the jury whether it was deadlocked on every count
before it granted a mistrial.
Combs cannot challenge as error the presiding juror’s failure
to publish the jury’s verdict on counts 2 through 4. Appellate
11
State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
12
StoreVisions, Inc. v. Omaha Tribe of Nebraska, 281 Neb. 238, 795 N.W.2d
271 (2011) (concluding in civil case that motion to dismiss is not special
proceeding and that overruling of motion to dismiss is not final order).
13
State v. Warner, 290 Neb. 954, 959, 863 N.W.2d 196, 200 (2015)
(discussing “the final order requirement in the context of § 29-2315.01”
regarding appeals by the prosecution).
- 431 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
courts consider errors made by the trial court, which may
relate to the jury. Our rules of appellate procedure direct appel-
lants to include in their briefs a “separate, concise statement of
each error a party contends was made by the trial court,”14 not
by the jury.
Finally, Combs cannot challenge the admission of certain
opinion testimony because the court’s admission of such tes-
timony is not subject to review, since Combs was granted a
mistrial. No judgment was rendered in Combs’ trial because it
resulted in a mistrial.
[12,13] But we have held that “a plea in bar . . . may be filed
to assert any nonfrivolous double jeopardy claim arising from
a prior prosecution” and that an “order overruling the plea in
bar [is] a final, appealable order.”15 A plea in bar is a special
proceeding’” for purposes of § 25-1902, and a nonfrivolous
double jeopardy claim affects a substantial right.16 Thus, the
district court’s order overruling Combs’ plea in bar is a final,
appealable order that we have jurisdiction to review.
Overruling of Combs’ Plea
in Bar: Double Jeopardy
Combs argues that the district court erred in overruling his
plea in bar. He argues that he presented evidence that the jury
voted to acquit him on three of the four counts, but that the
jury did not enter a verdict of acquittal on those counts because
it mistakenly thought it had to reach a unanimous verdict on
all counts. He asserts that he was effectively acquitted on
those counts and that the Double Jeopardy Clause of the U.S.
Constitution bars retrial.
[14] Under Neb. Rev. Stat. § 29-1817 (Reissue 2016), a
criminal defendant “may . . . offer a plea in bar to the indict-
ment that he has before had judgment of acquittal, or been
14
Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014) (emphasis supplied).
15
State v. Williams, 278 Neb. 841, 850-51, 774 N.W.2d 384, 392 (2009).
16
Id. at 847, 774 N.W.2d at 390.
- 432 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
convicted, or been pardoned for the same offense.” A plea in
bar may be used to raise a double jeopardy challenge to the
State’s right to retry a defendant following a mistrial.17
[15-17] The Double Jeopardy Clause of the Fifth Amendment
to the U.S. Constitution provides that “No person shall . . . be
subject for the same offence to be twice put in jeopardy of
life or limb . . . .” The 5th Amendment’s protection against
double jeopardy applies to states through the 14th Amendment
to the U.S. Constitution.18 This provision prohibits a crimi-
nal defendant from being put in jeopardy twice for the same
offense and “unequivocally prohibits a second trial following
an acquittal.”19 But this prohibition on retrial is not unequivo-
cal when the first trial ends in a mistrial.20
[18-20] Where a mistrial is declared over a defendant’s
objection, he or she may only be retried if the prosecution
can demonstrate a “‘manifest necessity’” for the mistrial.21
But as the U.S. Supreme Court has said, “[Where] a mistrial
[is] declared at the behest of the defendant, quite different
principles come into play. [Where] the defendant himself
has elected to terminate the proceedings against him . . . the
‘manifest necessity’ standard has no place in the application
of the Double Jeopardy Clause.”22 Where a defendant asks
the court to declare a mistrial, the Double Jeopardy Clause
does not bar retrial, subject to one “narrow exception.”23
17
See State v. Williams, supra note 15.
18
U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person of
life, liberty, or property, without due process of law”); Benton v. Maryland,
395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
19
Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717
(1978).
20
See Arizona v. Washington, supra note 19.
21
Id., 434 U.S. at 505.
22
Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 72 L. Ed. 2d 416
(1982).
23
See id., 456 U.S. at 673.
- 433 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
That narrow exception, where retrial is barred by the Double
Jeopardy Clause following a mistrial declared on the defend
ant’s motion, is “limited to those cases in which the [pros-
ecution’s] conduct giving rise to the successful motion for a
mistrial was intended to provoke the defendant into moving
for a mistrial.”24
In this case, Combs asked the district court three times to
declare a mistrial. Double Jeopardy does not bar retrial where
a defendant asks the trial court to declare a mistrial.25 The
narrow exception for circumstances in which the prosecution
intends to provoke the defendant into moving for a mistrial
does not apply here.
[21-23] We disagree with Combs that the jury acquitted
him. While the jury may have voted or tentatively voted to
acquit Combs on three of the counts in its deliberations, it
did not reach a verdict. The verdict form was not filled out or
signed, the jury did not announce a verdict and was not avail-
able to be polled by the parties, nor was any verdict accepted
by the district court. Neb. Rev. Stat. § 29-2024 (Reissue 2016)
provides, “When the jury have agreed upon their verdict they
must be conducted into court by the officer having them in
charge. Before the verdict is accepted the jury may be polled
at the request of either the prosecuting attorney or the defend
ant.” We have said that “[a] jury’s action cannot become a
verdict until it is finally rendered in open court and received
and accepted by the trial judge”26 and that “[a] verdict, to be
of any validity, must be delivered in open court.”27 A vote
taken in the privacy of jury deliberations is not a verdict.
The fact that the jury may have planned to acquit him on
three counts does not mean that the Double Jeopardy Clause
24
Id., 456 U.S. at 679.
25
See id.
26
State v. Anderson, 193 Neb. 467, 469, 227 N.W.2d 857, 858 (1975).
27
Longfellow v. The State, 10 Neb. 105, 107, 4 N.W. 420, 422 (1880).
- 434 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. COMBS
Cite as 297 Neb. 422
prohibits retrial after the court declared a mistrial at Combs’
own request.
Combs claims that the trial judge erred by not asking the
jurors whether they were deadlocked on all counts. But Combs
did not ask the court to inquire whether the jury had reached
a verdict on all counts. Instead, he asked for a mistrial, which
the court granted. Where Combs asked for and was granted a
mistrial, the Double Jeopardy Clause does not bar his retrial.
CONCLUSION
We affirm the order of the district court which overruled
Combs’ plea in bar. The Double Jeopardy Clause does not bar
Combs’ retrial after his first trial ended in a mistrial which was
granted at Combs’ request.
A ffirmed.
Cassel, J., participating on briefs.
| {
"pile_set_name": "FreeLaw"
} |
433 F.2d 352
Frank J. HUNTER, Appellant,v.MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a corporation, and St. Louis-San Francisco Railway Company, a corporation, Appellees.
No. 10154.
United States Court of Appeals, Tenth Circuit.
October 27, 1970.
Clem H. Stephenson, Seminole, Okl. (Roehm A. West, Tulsa, Okl., was with him on the brief), for appellant.
William J. Ross, of Rainey, Flynn, Welch, Wallace, Ross & Cooper, Oklahoma City, Okl., for Missouri-Kansas-Texas RR. Co.
Ben Franklin, of Franklin, Harmon & Satterfield, Inc., Oklahoma City, Okl., for St. Louis-San Francisco Ry. Co.
Before LEWIS, Chief Judge, JOHN R. BROWN, Chief Judge,* and SETH, Circuit Judge.
PER CURIAM.
1
This appeal was taken from a judgment entered in the United States District Court for the Northern District of Oklahoma adverse to appellant on a claim for damages for personal injuries suffered and caused by the alleged negligence of the appellee railroads. Recovery was denied by the court, sitting without a jury, on a factual finding that appellant was guilty of contributory negligence and the legal conclusion that appellant, a non-employee of the railroads, was not within the compulsion of the Federal Safety Appliance Act of 1910, 45 U.S.C. § 11. The sufficiency of the evidence to support the court's factual determination and the correctness of the court's ruling on the application of the Safety Appliance Act to appellant are both questioned on appeal. The trial court's memorandum opinion, D.C., 276 F.Supp. 936, fully sets forth the evidentiary background of the case and the relationship between the parties.
2
Since the trial of this case the Supreme Court has authoritatively upheld the trial court's ruling that the Safety Appliance Act does not immunize a non-employee from the defense of contributory negligence where, as here, a railroad has violated a safety provision of the Act. Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176. And from our review of the record we cannot say that the trial court was clearly erroneous in finding that appellant's own conduct negligently contributed to causing his injury. The judgment is accordingly
3
Affirmed.
Notes:
*
Of the Fifth Circuit, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
11 So.3d 963 (2009)
CUMMINS
v.
STATE.
No. 5D09-717.
District Court of Appeal of Florida, Fifth District.
June 16, 2009.
Decision without published opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
72 So.3d 161 (2011)
Janice M. RISCH, Appellant,
v.
BANK OF AMERICA, National Association, as Successor by Merger to Lasalle Bank, N.A. as Trustee For Zuni 2006-OA1, Appellee.
No. 2D10-4882.
District Court of Appeal of Florida, Second District.
August 3, 2011.
Rehearing Denied August 18, 2011.
*162 Bradley S. Donnelly of Treiser Collins, Naples, for Appellant.
Jeffrey T. Kuntz and Thomas H. Loffredo of Gray Robinson, P.A., Fort Lauderdale, for Appellee.
BLACK, Judge.
Janice M. Risch appeals the trial court's denial of her emergency motion for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. The record shows that the trial court conducted a hearing on Ms. Risch's motion; however, there was no evidence presented. Since Ms. Risch's motion asserted allegations of misrepresentation, which might give rise to relief pursuant to rule 1.540(b)(3), and since she attached an affidavit and records which could support her claim, we reverse and remand for an evidentiary hearing. See S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) ("[W]here the moving party's allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required."); see also Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984) ("The credibility of appellant's allegations should only be determined by the trial court after an evidentiary hearing thereon.").
Reversed and remanded.
SILBERMAN, C.J., and DAVIS, J., Concur.
| {
"pile_set_name": "FreeLaw"
} |
937 F.2d 580
34 Soc.Sec.Rep.Ser. 110, Unempl.Ins.Rep. CCH 16196APatricia A. EDWARDS, Plaintiff-Appellant,v.Louis W. SULLIVAN, as U.S. Secretary of Health and HumanServices, United States of America, Defendant-Appellee.
No. 90-8001.
United States Court of Appeals,Eleventh Circuit.
Aug. 5, 1991.
Arthur Frank Millard, Atlanta, Ga., for plaintiff-appellant.
Robert L. Barr, U.S. Atty., Nina Hickson Perry, Asst. U.S. Atty., Bruce R. Granger, Mary Ann Sloan, Scott C. Briles, Mack A. Davis, Holly A. Grimes and Christine Bradfield, Office of Gen. Counsel, Dept. HHS, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before ANDERSON and DUBINA, Circuit Judges, and GIBSON*, Senior Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge:
1
Patricia Edwards appeals the district court's1 order affirming the denial of her application for disability insurance benefits. We affirm the district court's order.
I. BACKGROUND
2
Edwards was born in May 1947 and is a high school graduate. In 1969 she began working for Delta Airlines, first as a teletype operator and then as a reservation agent. Sometime in 1973, she severely injured her back when she fell out of her chair at work. Some of her discs were fused, and she stopped working until 1979; from 1974 to 1977 she received disability insurance benefits.
3
In May 1979, Edwards returned to work at a travel agency; she continued working on a somewhat regular basis for a variety of employers in the travel industry. Her most recent employer was United Airlines, for whom she began working as a reservation agent in January 1984. On April 8, 1986, while still employed with United, Edwards again injured her back; this time the injury occurred while she was attempting to lift some equipment at work. She stopped going to work on April 10; Edwards tried to return to work on May 8 but was terminated by United.
4
Edwards filed for disability insurance benefits on October 10, but her request was denied. She requested a hearing, which was held on August 24, 1987. Edwards appeared without counsel. In addition to her own testimony, she offered reports and letters from Doctors Johnson, Edwards,2 and Cabot. None of the doctors testified at the hearing.
5
Doctor Johnson is a psychiatrist; he first treated Edwards for severe depression in December 1985. In a two-page letter dated November 18, 1986, he diagnosed Edwards as suffering from "Axis I Dysthymic Disorder, severe; Axis II Personality Disorder with mixed compulsive, dependent and avoidant features." He also opined that "[a]pparently a combination of orthopedic and emotional problems are contributing to her inability to work."
6
After the claimant re-injured her back in April 1986, Doctor Johnson referred her to Doctor Edwards, who initially diagnosed the claimant as suffering from a mild acute lumbar strain. A CT scan was performed, and Doctor Edwards' notes indicated that the claimant suffered from pain and would undoubtedly require further treatment, but the prognosis was good and she was likely to improve. Doctor Edwards also indicated that she could return to work; though he initially indicated that she could work only four hours a day, he did not explain why this limitation was imposed. Doctor Edwards later indicated that it would be "appropriate" for the claimant to return to work on a trial basis and that she would not suffer any permanent harm. Beginning in June 1986, Doctor Edwards' notes make several references to Claimant Edwards' legal problems and candidly concede that the doctor and the patient were having problems objectively judging her condition.
7
Edwards saw Doctor Cabot in connection with a workers' compensation claim relating to the April 1986 injury. Doctor Cabot recommended that a myelogram be performed and prescribed a conservative treatment program. Tests indicated that Edwards had a less than full range of motion; however, Doctor Cabot concluded that Edwards could work so long as she was allowed to get up and walk five minutes of every half hour.
8
At the hearing, Edwards testified that she could not work because of muscle spasms and pain in her lower back and neck and instability in her right leg. She testified that bending increased the pain and that she had to take two or three hot baths a day to alleviate the pain. She also stated that she made occasional trips to the supermarket, fixed meals, and performed light household chores, such as washing dishes.
9
At the conclusion of Edwards' testimony, the ALJ determined that he needed more information and ordered consultative orthopedic and psychological examinations. The orthopedic examination was performed by Doctor Hajosey. He determined that Edwards did suffer from decreased sensation and reflex in her right leg and ankle, but he could not determine whether this was a result of her disc fusion; furthermore, there was insufficient evidence for him to determine whether she suffered from a herniated disc. Based upon his examination, Doctor Hajosey concluded that Edwards could sit, stand, and walk, and that she could engage in each activity for up to four hours per day.
10
The consulting psychiatric evaluation was performed by Doctor Brooks. After administering a series of tests and conducting a personal interview, Doctor Brooks concluded that Edwards exhibited indicia of "social withdrawal, limited friendships, family problems both past and continuing, unmet needs regarding affection, denial of problems, emotional repression, and depression." Doctor Best-Williams, in her capacity of "medical advisor to the administrative law judge," reviewed the evidence "pertaining to the claimant's evaluation and treatment for emotional problems," but she did not personally see the claimant. Based on her review of the records, Doctor Best-Williams concluded that Edwards suffered from a dysthymic disorder with symptoms of depression and that this impairment moderately affected Edwards' ability to function socially. However, her daily activities were "only slightly negatively impacted by her [mental] impairment." She also concluded that Edwards' IQ scores and interview responses reflected that Edwards could think and reason, and that her limitations were due to her physical health. However, after comparing the psychological reports of Doctors Brooks and Johnson, Doctor Best-Williams concluded that Edwards' "limitations seemed to have improved." Finally, in completing an assessment of Edwards' capacity to perform a variety of work-related functions, Doctor Best-Williams indicated that Edwards was not significantly limited in any way, except for her ability to concentrate, which was moderately limited on an episodic basis.
11
The consulting doctors' reports were received into evidence at a supplemental hearing held by the ALJ. At that time, Edwards testified again; she stated that her back had deteriorated further and that her right leg was "getting worse." A vocational expert ("VE") also testified at the supplemental hearing and responded to three hypothetical questions posed by the ALJ. In the first hypothetical, the VE was asked to assume that Edwards' capabilities were restricted as described in the reports of Doctors Cabot and Best-Williams. The second hypothetical required the VE to consider the limitations described in the reports of Doctors Hajosey and Best-Williams. The final hypothetical included only Claimant Edwards' testimony. In response to the first two hypotheticals, the VE identified a variety of occupations with duties that Edwards could perform; however, if full credit were given to Edwards' testimony, there were no jobs in the national economy she could perform.
12
The ALJ found that, though Edwards suffered from a chronic lumbar strain, a mild to moderate dysthymic disorder, and a mild to moderate personality disorder, her condition did not meet any of the listed impairments entitling her to disability payments. He further found that her testimony regarding the degree of pain was not fully credible and that, despite her condition, she could perform jobs that exist in significant numbers in the national economy. Consequently, he denied Edwards' request for benefits.
II. DISCUSSION
13
Edwards raises a variety of arguments in an attempt to demonstrate that the ALJ's decision was improper. These arguments fall into three main categories: the ALJ's findings regarding her physical condition, the ALJ's findings regarding her mental condition, and denial of counsel. For ease of discussion, we will group her arguments into these three categories and conduct our analysis within that framework.
14
A. The ALJ's Findings Regarding Edwards' Physical Condition
15
Claimant Edwards argues that the ALJ erred in not accepting Doctor Edwards' professional assessment that she should be restricted to part-time hours. This assessment, according to the claimant, was not opposed by any of the other doctors involved in the case and, in any event, could not have been rebutted by the opinions of consulting doctors because Doctor Edwards was her treating physician.
16
It is true that the opinion of a treating physician is entitled to substantial weight unless good cause exists for not heeding the treating physician's diagnosis. E.g., Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir.1985) (per curiam). Here, however, good cause did exist to justify the ALJ's decision not to rely on Doctor Edwards' findings. First, Doctor Edwards' statement that Claimant Edwards was "restricted to a four (4) hour work day" contains no clinical data or information to support his opinion. The treating physician's report may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory. Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir.1987). Second, approximately one week after "limiting" Claimant Edwards to four hours of work per day, Doctor Edwards' clinical notes indicate that he thought it "appropriate" that she return to work; however, these same clinical notes do not impose or suggest any limitation on the number of hours she could work. This casts doubt on Claimant Edwards' need to be limited to part-time hours; either such a limitation was not medically required in the first instance, or her condition (or Doctor Edwards' assessment of her condition) changed. Finally, approximately one week prior to suggesting part-time hours, Doctor Edwards candidly conceded that he was not sure that he could objectively assess Claimant Edwards' condition. If a treating physician is unsure of the accuracy of his findings and statements, there is certainly no legal obligation for the ALJ to defer to the treating physician's report.
17
Edwards next complains that the ALJ should have accepted her testimony about her pain because she had a good work history. However, Congress has set forth the conditions under which a claimant's complaints of pain may establish the existence of a disability. 42 U.S.C. Sec. 423(d)(5)(A). This court has previously examined this section and ruled that a claimant must produce "evidence of an underlying medical condition and (1) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (2) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). Edwards has met the first requirement by producing evidence of an underlying medical condition. However, the ALJ determined that there were no "clinical findings indicative of a back impairment of the degree of severity described by [Edwards]." Having reviewed the record as Landry requires, we hold that substantial evidence supports the ALJ's conclusion. Id. at 1553.3 Consequently, Edwards has failed to meet either of the two conditions that would satisfy the second part of this test, and the ALJ was thus not required to grant Edwards benefits based on her complaints of pain.
18
Edwards also contends that the Secretary's prior finding of disability (from 1974 to 1977) is binding on the Secretary in the current application for benefits. The simple answer to this argument is that, from 1979 until 1985, Edwards was employed and earned income in excess of the earning guidelines used to determine whether an individual has engaged in substantial gainful activity. 20 C.F.R. Sec. 404.1574(b)(2) (1986). Her ability to engage in substantial gainful activity meant that her prior disability had ceased, and thus is not binding on the Secretary in this second application for benefits.
19
B. The ALJ's Findings Regarding Edwards' Mental Condition
20
Edwards argues that the ALJ improperly relied on Doctor Best-Williams' report instead of on Doctor Johnson's report. She correctly points out that the report of a non-examining doctor is accorded little weight if it contradicts an examining doctor's report; such a report, standing alone, cannot constitute substantial evidence. See, e.g., Spencer on behalf of Spencer v. Heckler, 765 F.2d 1090, 1093-94 (11th Cir.1985) (per curiam). At oral argument, the Secretary concedes that if Doctor Best-Williams' report is significantly different from either Doctor Johnson's or Doctor Brooks' reports, then the case must be remanded. Our task, then, is to compare the three reports and determine whether Doctor Best-Williams' report disagrees with the other two.
21
Doctor Johnson's report consists of two pages. He diagnosed Edwards as suffering from "Axis I Dysthymic Disorder, severe [and] Axis II Personality Disorder with mixed compulsive, dependent and avoidant features." In describing Edwards' limitations, Doctor Johnson indicated that she was "found by her employer to be unable to carry out her duties, and there is some question about whether her back problem is a work-related injury. Apparently a combination of orthopedic and emotional problems are contributing to her inability to work." It is not clear whether Doctor Johnson means that Edwards is unable to work at any job, or whether she was merely unable to continue with her prior employer. Significantly, Doctor Johnson's report does not indicate what limitations might be expected due to the conditions he diagnosed.
22
Doctor Brooks, whose findings were described above, concluded that Edwards' "impairment for work-related circumstances appear[ed] to be at a moderate to severe level primarily related to [Edwards'] ... level of depression, stress, major [sic] family problems." However, Doctor Brooks also indicated that "[i]f employment were possible which would allow her a flexible routine for some standing and moving around at work, she would benefit greatly from some time away from her home situation." From this, we conclude that Doctor Brooks did not mean to imply that Edwards could not work; had this been her meaning, she would not have suggested working as a means of "treatment."
23
Doctor Brooks also indicated that Edwards could not "operate in a routine work setting unless flexible to allow for periodic movement" and that initial part-time hours would be required. Significantly, Doctor Brooks did not explain why Edwards needed this freedom to move, nor did she indicate in general terms whether this freedom was mandated by Edwards' physical or mental condition. It is entirely probable, given the context of the case and the nature of Edwards' ailments, that Doctor Brooks included this limitation due to Edwards' physical complaints. Ultimately, the report is not clear in this regard.
24
Doctor Best-Williams' report recognizes that Edwards suffers from a dysthymic disorder and depression and accurately reflects the results of the tests administered by Doctor Brooks. Most importantly, Doctor Best-Williams provided an interpretation of Edwards' condition vis-a-vis the limitations those conditions placed on Edwards' abilities. Because this information was not contained in either Doctor Johnson's or Doctor Brooks' reports, we cannot say that Doctor Best-Williams contradicted their findings. Consequently, the ALJ did not err in relying on her report.
C. Denial of Counsel
25
Edwards contends that her due process rights were violated because her right to counsel was denied. The Secretary points out that Edwards was told of her right to counsel on several occasions, and on each she declined to be represented. Specifically, the Secretary points out that prior to the August 24 hearing, Edwards received a letter informing her of the right to representation and to submit evidence. This letter was accompanied by a list of attorneys and organizations that might help her. At the August 24 hearing, Edwards responded to the ALJ's questions about counsel by stating that she "didn't want any representation." On that same day, Edwards signed a statement indicating that she was aware of her rights to representation and that she had been informed of attorneys and agencies that might be available to represent her. At the December 14 hearing, Edwards again told the ALJ that she wanted to represent herself, and she signed another copy of the statement she had signed on August 24.
26
The problem with these disclosures is that none of them informed Edwards that any fee awarded would be limited to 25% of her benefits. 42 U.S.C. Sec. 406(b)(1). In fact, the letter Edwards received prior to the August 24 hearing contains less information than letters we have found wanting in the past. See Benson v. Schweiker, 652 F.2d 406, 408 (5th Cir. Unit B July 1981); see also Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. Unit B July 1981) (notice lacked "very important information that in no event could such a fee exceed 25% of the recovery for [the] amount due up to the date of the award.").4 Because the notice was flawed, any purported waiver was ineffective. Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir.1982).
27
Finding a flaw in the notice, however, does not automatically require the case be remanded. We must examine the record to determine whether Edwards was prejudiced by her lack of representation. Id. In examining the record, "[w]e are concerned not so much with whether every question was asked which might have been asked had [Edwards] been represented by an attorney, as we are with whether the record reveals evidentiary gaps which result in unfairness or 'clear prejudice.' " Id. at 830 (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir. Unit A July 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982)). We discern no evidentiary gaps in the record before us. Every doctor who examined Edwards submitted a report, and the ALJ procured reports from three consulting doctors in order to aid his understanding of those reports which, as we have indicated, were not entirely clear as to Edwards' limitations. Though Edwards disagrees with the ALJ's conclusions, the fact remains that those conclusions were supported by substantial evidence, and Edwards does not indicate what facts could have been submitted by an attorney that would have changed the outcome. Consequently, Edwards was not prejudiced by her failure to be represented at the hearings. Cf. McConnell v. Schweiker, 655 F.2d 604, 606 (5th Cir. Unit B Sept. 1981).5
III. CONCLUSION
28
The Secretary's decision is based upon substantial evidence appearing in the record as a whole. Although Edwards' was not adequately informed of her right to counsel, she was not prejudiced by this imperfection. We have considered Edwards' remaining arguments and conclude they lack merit. Consequently, we AFFIRM the district court.
*
Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation
1
The Honorable Orinda D. Evans, U.S. District Judge for the Northern District of Georgia
2
There is apparently no relationship between Doctor Edwards and the claimant
3
"Substantial evidence is more than a scintilla. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.1986). Under this standard, we do not reverse the Secretary even if this court, sitting as a finder of fact, would have reached a contrary result; "[e]ven if we find that the evidence preponderates against the secretary's decision, we must affirm if the decision is supported by substantial evidence." Id
4
The Eleventh Circuit has adopted the former-Fifth Circuit's decisions as binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc)
5
We do not understand why, nearly a decade after Clark, Benson, and Smith were decided, the Secretary still has not formulated an adequate notice. We would prefer that the Secretary send claimants a proper notice in the first place instead of arguing that no prejudice occurred despite the lack of proper notice
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 79 EAL 2019
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
OMAR L. PETERSON, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 9th day of July, 2019, the Petition for Allowance of Appeal is
DENIED.
| {
"pile_set_name": "FreeLaw"
} |
6 F.Supp.2d 626 (1998)
In re PARACELSUS CORP., SECURITIES LITIGATION.
No. H-96-3464 (EW).
United States District Court, S.D. Texas, Houston Division.
March 9, 1998.
*627 Roger Farrell Claxton, Kilgore & Kilgore, Dallas, TX, Terrell Wallace Oxford, Susman Godfrey, Dallas, TX, Jonathan K. Levine, Frederic S. Fox, Kaplan Kilsheimer and Fox, New York, NY, Daniel L. Berger, Bernstein Litowitz Berger and Grossman, New York, NY, Katherine M. Ginzburg, Susman Godfrey, Houston, TX, for Hayley W. Werner.
Terrell Wallace Oxford, Susman Godfrey, Dallas, TX, Jonathan K. Levine, Frederic S. Fox, Kaplan Kilsheimer and Fox, New York, NY, Daniel L. Berger, Bernstein Litowitz Berger and Grossman, New York, NY, Katherine M. Ginzburg, Susman Godfrey, Houston, TX, for Alan Gordich, Lead Plaintiff, Gary Matzner, Lead Plaintiff, J. A. Ziskind, Lead Plaintiff.
David E. Sharp, Roger B. Greenberg, Greenberg Peden Siegmyer & Oshman, Houston, TX, Daniel L. Berger, Bernstein Litowitz Berger and Grossman, New York, NY, for Barry Garber.
Roger B. Greenberg, Greenberg Peden Siegmyer & Oshman, Houston, TX, Daniel L. Berger, Bernstein Litowitz Berger and Grossman, New York, NY, for James Kramer, Joseph Lipsky.
John R. Knight, Houston, TX, Daniel L. Berger, Bernstein Litowitz Berger and *628 Grossman, New York, NY, for Lawrence Rice, Jaclyn Alexander Rice.
Kenneth G. Gilman, David Pastor, Gilman and Pastor, Boston, MA, Larry Richard Veselka, Smyser Kaplan & Veselka, Houston, TX, Daniel L. Berger, Bernstein Litowitz Berger and Grossman, New York, NY, Daniel C. Girard, Robert A. Jigarjian, Girard and Green, San Francisco, CA, Peter A. Lagorio, Gilman and Pastor, Boston, MA, for James G. Caven.
Richard P. Keeton, Mayor Day Caldwell & Keeton, Houston, TX, Andrew B. Weisman, Wilmer Cutler and Pickering, Washington, DC, Abby Meisleman, Mayor Day Caldwell and Keeton, Houston, TX, Arthur F. Mathews, Wilmer Cutler and Pickering, Washington, DC, for Paracelsus Health.
Robert Roy Burford, Jean C. Frizzell, Gibbs & Bruns, Houston, TX, Kenneth Conboy, Elisabeth L. Goot, Walter P. Loughlin, Latham and Watkins, New York, NY, for Manfred George Krukemeyer.
Kim Bernard Battaglini, Akin Gump Strauss Hauer and Feld, Houston, TX, Joseph Paul Esposito, Sanford M. Saunders, Jr., Akin Gump Strauss Hauer and Feld, Washington, DC, Steven M. Pesner, Akin Gump Strauss Hauer & Feld, New York, NY, Robert H. Pees, Akin and Gump, New York, NY, for R. J. Messenger.
Richard H. Borow, Kenneth R. Heitz, Marc A. Fenster, Irell and Manella, Los Angeles, CA, for James T. Rush.
Gerard G. Pecht, Fulbright and Jaworski, Houston, TX, for Bear Stearns & Co., Inc., Smith Barney Inc., Donaldson, Lufkin & Jenrette, Inc.
Steven Richard Selsberg, Shook Hardy and Bacon, Houston, TX, Gerard G. Pecht, Fulbright and Jaworski, Houston, TX, for The Chicago Corp.
Robert Ross Harrison, Saccomanno & Clegg, Houston, TX, for Patricia Greenberg.
Edward Huddleston, Robert F. Watson, Law Snakard and Gambill, Fort Worth, TX, for Donald R. Patterson, Charles R. Miller, James G. VanDevender.
MEMORANDUM AND ORDER
WERLEIN, District Judge.
Pending are Charles R. Miller's and James G. VanDevender's Motion to Dismiss Under FED. R. CIV. P. 12(b)(6) (Document No. 67); Defendant Manfred G. Krukemeyer's Motion to Dismiss Count III of the Consolidated Class Action Complaint and Joinder in Paracelsus's Motion to Dismiss that Complaint (Document No. 69), and Paracelsus Healthcare Corporation's Motion to Dismiss (Document No. 80). In addition, Defendant Ron J. Messenger has filed his Joinder (Document No. 71) in the Motions to Dismiss filed by Paracelsus, as to Count I, and by Defendant Robert Joyner[1] as to Count III. Defendant Rush has also filed his Notice of Joinder (Document No. 77) in the Motion to Dismiss filed by Defendant Paracelsus. Plaintiffs have filed their response to the several motions and, after careful study of the arguments and authorities presented by all parties, the Court concludes as follows:
I. Background
The Consolidated Class Action Complaint (Document No. 66), alleges that Paracelsus Healthcare Corporation ("Paracelsus") owns and operates acute care and specialty hospitals and related healthcare businesses in selected markets across the United States. Paracelsus was a privately held corporation until August 16, 1996, when it acquired Champion Healthcare Corporation ("Champion"), another owner and operator of hospitals and related healthcare businesses, whose common stock was publicly traded on the American Stock Exchange.
On July 19, 1996, Paracelsus and Champion filed a joint registration statement, proxy statement, and prospectus (the "Exchange Offer Prospectus") with the Securities and Exchange Commission ("SEC"). Pursuant to the terms of the Exchange Offer Prospectus, each outstanding share of Champion *629 common stock was to be exchanged for one share of the newly issued Paracelsus common stock, contingent upon Champion shareholder approval. The Exchange Offer Prospectus also revealed that concurrent with and contingent upon the consummation of the merger with Champion, Paracelsus would commence an initial public offering (the "IPO") of its common stock, as well as a separate public offering of senior subordinated notes. Registration statements and prospectuses were filed for the sale of 5.2 million shares of the Company's common stock, as well as $325 million in senior subordinated notes (the "Notes Offering") bearing interest at a rate of 10 percent annually. The merger and public offerings were declared effective August 13, 1996.
Manfred G. Krukemeyer ("Krukemeyer") was Chairman of the Board of Directors of Paracelsus, and the sole shareholder of Paracelsus before its merger with Champion. As a result of the August 1996 merger, Paracelsus declared a 66,159.426-for-one stock split whereby Krukemeyer obtained approximately 30 million shares of the merged company, or approximately 55 percent ownership of the post-merger Paracelsus. The Champion shareholders received approximately 18 million shares of Paracelsus stock in exchange for their Champion shares, representing approximately 40 percent ownership of the merged company.
Charles R. Miller ("Miller") served as President and Chief Executive Officer of Champion from the time of its formation in 1990. After the merger, Miller obtained ownership of approximately 2 percent of the Paracelsus stock, and was retained as President and Chief Operating Officer of Paracelsus. James G. VanDevender ("VanDevender") served as Executive Vice President, Chief Financial Officer, Secretary and Director of Champion. After the merger, VanDevender obtained ownership of approximately 1.2 percent of Paracelsus's outstanding common stock, and was retained by Paracelsus as its Executive Vice President and Chief Financial Officer.
On October 9, 1996, Paracelsus announced in a press release that it anticipated reporting lower financial results for the quarter ending September 30, 1996 than it had previously expected, and that it also anticipated restating certain past financial reports. After completion of an internal inquiry, on April 15, 1997, Paracelsus filed with the SEC its Form 10-K for the fiscal year ending December 31, 1996, in which it confirmed that it would restate its past financial reports for periods commencing with January 1, 1992, through the nine months ending September 30, 1996.
Plaintiff Haley W. Werner[2] ("Werner") filed the instant class action on October 15, 1996, following a decline in the stock price after Paracelsus's October 9, 1996 press release. On February 14, 1997, this Court granted Paracelsus's Motion to Consolidate the present action with three other similar class actions filed in the Southern District of Texas. Pursuant to this Court's Order, Plaintiffs filed a Consolidated Class Action Complaint on May 2, 1997 (Document No. 66) asserting claims under Sections 11, 12(a)(2), and 15 of the Securities Act, 15 U.S.C. §§ 77k, 77l, and 77o. Specifically, in Count I, Plaintiffs allege violations of Section 11 of the Securities Act by all named Defendants, claiming that the "Public Offering Prospectuses," comprised of the Exchange Offer Prospectus, the IPO Prospectus, and the Notes Offering Prospectus, were "inaccurate and misleading, contained untrue statements of material facts, and omitted to state other facts necessary to make the statements contained therein not misleading." (Document No. 66 at 44). In Count II, Plaintiffs allege a violation of Section 12(a)(2) of the Securities Act by Defendant Paracelsus. In Count III, Plaintiffs claim a violation of Section 15 of the Securities Act by the named individual Defendants on the ground that the individual Defendants have "controlling person" liability for the alleged securities law violations.
II. Summary of the Motions to Dismiss
In their Motion to Dismiss, Defendants Miller and VanDevender seek dismissal of all *630 claims made in the Consolidated Class Action Complaint on the ground that the Plaintiffs assert claims relating to the sale of certain debt securities where none of the Plaintiffs are alleged to have purchased such a security. Additionally, Defendants maintain that while several Plaintiffs did not purchase securities in a public securities offering, they assert claims that apply only to such purchases. Miller and VanDevender also contend that the allegations in Count III fail to assert the requisite level of control by Miller and VanDevender over the party allegedly making the misrepresentations. According to Defendants, Plaintiffs' failure to allege the requisite level of control fails to state a cause of action under Section 15 of the 1933 Securities Act.
Similarly, in his Motion to Dismiss, Defendant Krukemeyer seeks dismissal of the Consolidated Class Action Complaint on the following grounds: (1) Plaintiffs have failed to state a cause of action against Krukemeyer for "controlling person" liability under Section 15 of the 1933 Securities Act because the allegations of Krukemeyer's control over Paracelsus are deficient; (2) Plaintiffs lack standing to assert a claim under Section 15 of the 1933 Act against Krukemeyer; and (3) Plaintiffs lack standing to assert a claim under Section 11 of the 1933 Act against Krukemeyer. (Document No. 69).
Paracelsus also seeks dismissal of those claims asserted against it under Sections 11 and 12 of the Securities Act. (Document No. 80). Specifically, Paracelsus contends that no plaintiff in this matter satisfies the core standing requirement that he or she purchased the debt securities sold in the offering. Accordingly, Paracelsus seeks dismissal of all claims arising out of the debt offering. Additionally, Paracelsus requests dismissal of all claims asserted by those Plaintiffs who did not purchase Paracelsus securities in any of the three offerings that are the subject of this case on the ground that only investors who purchased securities pursuant to a prospectus delivered as part of a public offering have potential claims under Sections 11 or 12 of the Securities Act. Further, Paracelsus contends that no valid claims have been asserted under Section 12(a)(2) of the Securities Act because no Plaintiff has alleged facts permitting any inference that Paracelsus acted as a statutory seller within the meaning of Section 12.
III. Standard for FED. R. CIV. P. 12(b)(6) dismissal
Fed.R.Civ.P. 12(b)(6) provides for dismissal of an action for "failure to state a claim upon which relief can be granted." When a district court reviews the sufficiency of a complaint before it receives any evidence either by affidavit or admission, its task is inevitably a limited one. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the district court should construe the allegations in the complaint favorably to the pleader and accept as true all well-pleaded facts in the complaint. La Porte Construction Co., v. Bayshore Nat'l Bank of La Porte, Tex., 805 F.2d 1254, 1255 (5th Cir.1986); Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.1977). Dismissal of a claim is improper unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Kaiser Aluminum, 677 F.2d at 1050; Mann, 556 F.2d at 293. "The plaintiff need not set forth all the facts upon which the claim is based; rather, a short and plain statement is sufficient if it gives the defendant fair notice of what the claim is and the grounds upon which it rests." Mann, 556 F.2d at 293. Therefore, in challenging the sufficiency of the complaint under Rule 12(b)(6), the defendant bears the burden of proving that no relief could be granted under any set of facts that could be proved consistent with the allegations in the complaint. Hishon v. King & *631 Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984).
IV. Claims based on the Notes Offering
Each Plaintiff alleges claims arising out of the Notes Offering, although Plaintiffs concede that none of the Plaintiffs purchased any of the Paracelsus notes. Plaintiffs allege, however, that the Prospectuses "contained substantially identical disclosures concerning the business and financial condition of Paracelsus and Champion prior to the merger," as well as identical false and misleading financial statements. (Document No. 66 at ¶¶ 33-35). Plaintiffs maintain that the virtually identical content of the Prospectuses is sufficient to confer standing to pursue claims on behalf of those individuals who did purchase the notes, although none of those purchasers has sued in this case. This argument is without merit.
Section 11 of the 1933 Securities Act clearly provides a private action to "any person acquiring such security ...." 15 U.S.C. § 77k (emphasis added). Similarly, Section 12 creates a cause of action for "the person purchasing such security ...." 15 U.S.C. § 77l (emphasis added). Therefore, a plaintiff bringing suit under either Section 11 or Section 12 of the Securities Act at least must allege that he or she purchased or acquired the security at issue. Plaintiffs in the instant matter do not allege that any named Plaintiff purchased or acquired any of the Paracelsus notes at issue. In fact, Plaintiffs concede in their Response that none of the Plaintiffs acquired any of the notes. Plaintiffs therefore have failed to plead the express statutory standing requirements for an action under Sections 11 and 12 of the Securities Act, and they have failed to state a cause of action upon which relief can be granted with respect to the Notes Offering. Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 965 (9th Cir.1990); Ratner v. Sioux Natural Gas Corp., 770 F.2d 512, 517 (5th Cir.1985); In re Storage Technology Corp. Securities Lit., 630 F.Supp. 1072, 1078 (D.Colo.1986) (dismissing complaint where plaintiffs failed to allege facts sufficient to establish ownership or acquisition of the securities at issue). Moreover, an individual plaintiff who lacks standing to assert a claim on his or her own behalf cannot avoid dismissal by purporting to maintain the action on behalf of a class of which he or she is not a member. In re Taxable Mun. Bond Sec. Litig., 51 F.3d 518, 522 (5th Cir.1995). Accordingly, Defendants' Motions to Dismiss Plaintiffs' claims under Sections 11, 12, and 15 as they relate to the Notes Offering are GRANTED.
V. Claims Under Section 12
A. Plaintiffs who purchased securities on the open market
Defendants contend that those Plaintiffs who did not purchase their securities in the public offerings do not state a claim under sections 11 or 12 of the 1933 Securities Act. Specifically, Defendants seek the dismissal of all section 11 and section 12 claims asserted by those Plaintiffs who purchased their securities in the open market, and not pursuant to a prospectus delivered in connection with the public offerings. This contention is primarily premised on the United States Supreme Court's decision in Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). The Court in Gustafson held that section 12(2) of the Securities Act could not provide a basis for liability where the private sale contract did not constitute a "prospectus." The Court described the word "prospectus" as "a term of art referring to a document that describes a public offering of securities by an issuer or controlling shareholder." Id. at 1073-74. The Court reiterated its earlier jurisprudence that the 1933 Act was primarily concerned with the regulation of new offerings, and that those considerations counseled its interpretation that Section 12(2) liability be limited to public offerings. Id. 115 S.Ct. at 1070-71.
The parties have cited various cases, mostly by district courts, in which Gustafson has been cited and relied upon in different ways. It remains to be seen which view will be upheld in the appellate courts and thus whether the purchaser of a security in the secondary market, who buys within the initial public offering period, has standing to maintain an action under Sections 11 and 12(2) based upon the prospectus issued in connection with the new offering. For purposes of the pending motions, however, the Court *632 must examine only the allegations set forth in the Complaint. Plaintiffs allege that each of Plaintiffs who purchased shares of Paracelsus's common stock on the open market "purchased shares ... pursuant to the Company's Public Offering Prospectuses ...." Plaintiffs' Consolidated Class Action Complaint ¶ 4(c). Further, Plaintiffs allege in Count I that "Plaintiffs ... purchased Paracelsus common stock pursuant to the Public Offering Prospectuses." Id. at ¶ 82. These allegations are sufficient to withstand a motion to dismiss under Rule 12(b)(6). For the present, and accepting as true all well pleaded facts alleged by Plaintiffs, the motion to dismiss under Rule 12(b)(6) the claims of Plaintiffs who purchased on the open market during the initial public offering period is DENIED.
B. Paracelsus's status as a "seller" under Section 12(a)(2)
Paracelsus moves to dismiss all of Plaintiffs' claims against Paracelsus under Section 12(a)(2) based upon there being no allegation of fact that Paracelsus either sold securities in the public offering or actively solicited any such sale.
Section 12(a)(2) of the 1933 Securities Act provides that any person who offers or sells a security by means of a prospectus or oral communication that makes misstatements or omissions of material facts "shall be liable ... to the person purchasing such security from him." 15 U.S.C. § 77l(a)(2). In the instant case, Plaintiffs specifically allege in Count II that:
By means of the Public Offering Prospectuses, defendant Paracelsus sold shares of the Company's common stock, as well as its senior subordinated notes, to plaintiffs and the members of the Class in return for proceeds of approximately $360 million. The Company's actions of solicitation consisted primarily of the preparation and dissemination of the Public Offering Prospectuses.
(Document No. 66 at ¶ 85; see also ¶¶ 86-88; ¶¶ 30, 35, 49, 61).
Paracelsus forcefully argues that it neither passed title to Plaintiffs nor solicited the transactions in which title passed, and that Plaintiffs' allegations fail to support an inference that Paracelsus was a section 12 "seller." Indeed, Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988) and Abell v. Potomac Ins. Co., 858 F.2d 1104, 1113-15 (5th Cir.1988), judgment vacated and case remanded on other grounds, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989), are both instructive on the meaning of the term "seller" as used in Sections 12(a)(1) and 12(a)(2), and both parties have argued their meaning. At this pleading stage, however, a dismissal would require a finding that no relief could be granted under any set of facts that could be proved consistent with the allegations. Plaintiffs' pleading includes allegations that "Paracelsus sold shares of the Company's common stock ... to plaintiffs and the members of the Class in return for proceeds of approximately $360 million." (Document No. 66 at ¶ 85). Whether Paracelsus was a seller within the meaning of Section 12(a)(2) may be susceptible to summary disposition, as Paracelsus argues, but such should be considered in an evidentiary context rather than on a bare pleading, which must be taken as true under Rule 12(b)(6). The determinations of a "seller" under the leading cases that have interpreted Section 12, after all, have been rather fact intensive questions. There were full trials in both Pinter and Abell and at that, the Supreme Court remanded Pinter for further fact findings by the district court. Thus, the motion to dismiss the Section 12(a)(2) claims against Paracelsus is DENIED.
VI. Claims pursuant to Section 15
Section 15 of the 1933 Securities Act imposes liability on "controlling persons" for securities violations committed by individuals under their control. See Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). Specifically, Section 15 provides:
Every person who, by or through stock ownership, agency, or otherwise, or who, pursuant to or in connection with an agreement or understanding with one or more other persons by or through stock ownership, agency, or otherwise, controls any person liable under sections 77k or 771 of *633 this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.
15 U.S.C. § 77o. To establish a prima facie case of a Section 15 violation, a plaintiff must show that the defendant at least had power to control the "controlled person" in the specific transaction that is alleged as a violation, and possibly, although the Fifth Circuit has not definitively so held, that the defendant actually exercised control over the operations of the controlled person. Abbott, 2 F.3d at 620-21; Dennis v. General Imaging, Inc., 918 F.2d 496, 509 (5th Cir.1990); cf. Metge v. Baehler, 762 F.2d 621, 630-31 (8th Cir. 1985). "Control" has been defined as:
[T]he possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
Dennis, 918 F.2d at 509 (citing 17 C.F.R. § 230.405). Again, this is generally a fact intensive question, and presently the Court is constrained to examine only the Plaintiffs' Consolidated Class Action Complaint.
In their Consolidated Class Action Complaint Plaintiffs have alleged that each of Defendants Krukemeyer, Messenger, Rush, Miller, and VanDevender had the power and authority to cause Paracelsus to engage in the wrongful conduct alleged. Pleading with further specificity, Plaintiffs allege that Krukemeyer held such power and authority by reason of his position as Chairman of the Board of Paracelsus as well as by reason of his ownership or control of 100% of the Company's common stock before the merger, and approximately 55% of its common stock after the merger; that Defendant Messenger had such power and authority by reason of his position as Vice Chairman of the Board and Chief Executive Officer of the Company, as well as Chairman of the Board's Executive Committee; that Defendant Rush had such power and authority by reason of his position as Senior Vice President of the Company following the merger with Champion, and his position as Vice President and Chief Financial Officer of the Company before the merger, a position he had held for 11 years immediately preceding the merger; that Defendant Miller had such power and authority by reason of his ownership or control over 1,075,026 shares of Paracelsus common stock, his positions as President and Chief Operating Officer of the Company, and as a member of the Paracelsus Board and its Executive Committee after the merger with Champion, as well as by reason of his positions as Chairman of the Board, President, and Chief Executive Officer of Champion before the merger; and that Defendant VanDevender had such power and authority by reason of his ownership or control over 630,000 shares of Paracelsus common stock, his positions as Executive Vice President and Chief Financial Officer of the Company, as well as his being a member of the Paracelsus Board and its Executive Committee after the merger with Champion, as well as his positions as Executive Vice President, Chief Financial Officer, Secretary and Director of Champion before the merger. Moreover, each of the individual defendants is alleged to have participated in the drafting, preparation, and/or approval of various false and misleading statements contained in the various registration statements and prospectuses filed by the Company with the SEC in connection with the merger between Paracelsus and Champion, and that none of the individual defendants made a reasonable investigation or possessed reasonable grounds for the belief that the statements contained in the Public Offering Prospectuses were true and devoid of any omission of material fact. It is alleged that these individual defendants had control over the Company, giving rise to their joint and several liability with Paracelsus under Section 15 of the Securities Act.
The allegations set forth in the Consolidated Class Action Complaint are sufficient to withstand a Motion to Dismiss under Rule 12(b)(6), and accordingly, Defendants' Motions to Dismiss the Section 15 claims against the individual defendants Krukemeyer, Messenger, Rush, Miller, and VanDevender, are DENIED.
*634 VII. Order
Based on the foregoing, it is
ORDERED that Defendant Paracelsus's and the individual Defendants' Motions to Dismiss Plaintiffs' class action claims filed in behalf of all persons who acquired any of Paracelsus's $325 million in notes, is GRANTED, and all claims based upon the sales of such notes are DISMISSED. It us further
ORDERED that Defendant Paracelsus's and the individual Defendants' Motions to Dismiss are in all other respects DENIED.
NOTES
[1] Defendant Robert Joyner's Motion to Dismiss (Document No. 74), was DENIED as moot after Plaintiffs and Joyner filed a stipulation for Joyner's dismissal, which was granted by Order entered June 30, 1997. This does not prejudice the adoption of such motion by Messenger, which for the most part raises the same issues raised in the other motions under review.
[2] Plaintiff Werner is the designated lead plaintiff for the class of shareholders who purchased or acquired Paracelsus common stock or senior subordinated notes pursuant to the registration statements and prospectuses filed with the SEC in connection with the Company's initial public offering of common stock and in connection with the Company's notes offering.
| {
"pile_set_name": "FreeLaw"
} |
176 S.E.2d 738 (1970)
277 N.C. 197
STATE of North Carolina
v.
Willie Lee MURRY.
No. 5.
Supreme Court of North Carolina.
October 14, 1970.
*742 Atty. Gen. Robert Morgan and Asst. Atty. Gen. I. Beverly Lake, for the State.
J. H. Barrington, Jr., Lumberton, for defendant appellant.
BOBBITT, Chief Justice.
The act of "carnally knowing and abusing any female child under the age of twelve years" is rape. G.S. § 14-21; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Johnson, 226 N.C. 671, 40 S.E.2d 113. Neither force, State v. Johnson, 226 N.C. 266, 37 S.E.2d 678, nor intent, State v. Gibson, 221 N.C. 252, 20 S.E.2d 51, are elements of this offense.
"The terms `carnal knowledge' and `sexual intercourse' are synonymous. There is `carnal knowledge' or `sexual intercourse' in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. G.S. § 14-23; State v. Monds, 130 N.C. 697, 41 S.E. 789; State v. Hargrave, 65 N.C. 466; State v. Storkey, 63 N.C. 7; Burdick: Law of Crime, section 477; 44 Am.Jur., Rape, section 3; 52 C.J., Rape, sections 23, 24." State v. Bowman, 232 N.C. 374, 61 S.E.2d 107; State v. Jones, 249 N.C. 134, 105 S.E.2d 513.
The State's evidence was positive as to each and every element of the crime charged in the bill of indictment.
Defendant presents two questions: (1) Was the admission of Johnson's testimony as to defendant's in-custody statements erroneous and prejudicial? (2) Did the court err in instructing the jury with reference to the lesser included offense of assault on a female?
There was ample evidence to support Judge Brewer's findings of fact. It is not contended that Johnson did not carefully and fully advise defendant as to his constitutional rights. Defendant contends the incriminating statements attributed to him by Johnson should have been excluded because (1) defendant was sixteen years old, and (2) several officers were present when the statements were made.
With reference to defendant's age, the record shows: Johnson testified on voir dire he knew defendant was "a sixteen-year-old boy." He testified at trial that defendant stated "that he completed the eighth grade in school". In the annotation, 87 A.L.R.2d at 626, it is stated: "A confession is not inadmissible, in the absence of a statutory provision to the contrary, merely because the person making it is a minor." This rule obtains in this jurisdiction. State v. Hill, 276 N.C. 1, 14, 170 S.E.2d 885, 894.
With reference to the presence of other officers, the record shows: The interrogation *743 of defendant on both occasions was by F. D. Johnson, Special Agent of the State Bureau of Investigation. Their first conversation took place in the sheriff's office in the courthouse in Lumberton. During portions of the interview, Luther W. Hagens, Chief of Police of Red Springs, and Leroy Freeman and Carl Herring, Deputy Sheriffs, were in the office. Other (unidentified) officers stayed "in the outside office." The following morning, when the tape recording was made, the only officer present, except Johnson, was the deputy sheriff (Freeman) who had custody of defendant.
"(T)he mere fact that a confession was made while the defendant was in custody of police officers, after his arrest by them upon the charge in question and before employment of counsel to represent him, does not, of itself, render it incompetent." State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1, 8, and cases cited.
Nothing in the evidence indicates that any officer mistreated, deceived or otherwise coerced defendant. Obviously, by getting on the roof of his house, defendant was seeking to conceal himself from the officers. After his arrest, according to Johnson's testimony and the statements attributed by Johnson to defendant, defendant was not intimidated or frightened. Upon the uncontroverted evidence and factual findings, the court properly admitted Johnson's testimony as to incriminating statements made by defendant.
As indicated, defendant assigns as error the court's instruction that the jury might return a verdict of guilty of an assault upon a female by a male person over the age of eighteen years. It is contended that this instruction is erroneous because the only evidence as to defendant's age (Johnson's testimony on voir dire) tends to show that he was sixteen years of age. In so instructing the jury, seemingly the court had in mind the provisions of G.S. § 14-33 (G.S. 1B, Recompiled 1953) prior to the rewriting thereof by Chapter 618, Session Laws of 1969, now codified as G.S. § 14-33 (G.S. 1B, Replacement 1969). Presently, under G.S. § 14-33, a person who "(a)ssaults a female person, he being a male person," is guilty of "an aggravated assault."
The inadvertent error in the court's said instruction was not prejudicial to defendant. All of the evidence tended to show the completed crime of rape. Apparently, the court considered certain of the statements attributed to defendant indicated his act of intercourse with Linda was not in all respects complete, and that this warranted the submission for jury consideration of the lesser included offense of assault with intent to commit rape.
Nothing in the evidence warranted a verdict of guilty of a mere simple assault upon a female person by a male person. G.S. § 15-169 and G.S. § 15-170 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516, and cases cited. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547; State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488. The error in the instruction was not prejudicial to defendant but definitely in his favor.
The evidence depicts a twofold tragedy: An eleven-year-old girl, referred to in defendant's confession as the "smaller girl," as the victim of rape, has experienced an unforgettable ordeal. A sixteen-year-old boy, by his lustful and uninhibited conduct, has forfeited his liberty.
No error.
Justice Lake did not participate in the consideration or decision of this case.
| {
"pile_set_name": "FreeLaw"
} |
177 Cal.App.4th 940 (2009)
JOHN DELOIS, Plaintiff and Appellant,
v.
BARRETT BLOCK PARTNERS et al., Defendants and Appellants.
No. A121665.
Court of Appeals of California, First District, Division Two.
August 24, 2009.
*943 Law Offices of Julian T. Lastowski and Julian T. Lastowski for Plaintiff and Appellant.
Zacks, Utrecht & Leadbetter, Andrew M. Zacks and James B. Kraus for Defendants and Appellants.
OPINION
HAERLE, J.
I. INTRODUCTION
In 2006, a dispute arose between plaintiff John Delois, then a tenant of defendants in a "live/work" space on Harrison Street in San Francisco, and defendants. The dispute, described in more detail below, was purportedly resolved by a written agreement between the parties. But various and sundry factors led to alleged breaches of that agreement; in any event, plaintiff did not vacate the premises on the date agreed upon in the settlement agreement and, as a result, defendants did not forgive the past due rent or return the security deposit as they would have done pursuant to that agreement.
After vacating the premises, plaintiff filed a 10-cause-of-action complaint against defendants alleging, e.g., various torts and breaches of contract regarding defendants' actions. Defendants countered with a SLAPP (strategic lawsuit against public participation) motion under Code of Civil Procedure section 425.16 (section 425.16) asking that all 10 causes of action be stricken. The trial court ruled that defendants had satisfied the first prong of that section as to all 10 causes of action, but not the second prong as to four of them. It thus struck six of plaintiff's causes of action (essentially tort causes of action), but declined to strike the remaining four (mainly contractual) causes of action. Defendants appeal the order insofar as it fails to strike three of the remaining four causes of action. (They concede that the trial court's order was correct as to respondent's first cause of action, which sought declaratory relief.)
Plaintiff cross-appeals from the order insofar as it struck six of his causes of action, contending that none of those claims satisfies the first prong of section 425.16. We agree with that contention and hence reverse the trial court's order.
*944 II. FACTUAL AND PROCEDURAL BACKGROUND
From 1995 to 2006, plaintiff was a tenant in a "live/work" space owned by defendant Barrett Block Partners, a limited partnership, at 743 Harrison Street in San Francisco. At that space, plaintiff operated a business known as "The Clay Studio." Defendant John Barrett (Barrett) is the general partner of the limited partnership.
Sometime in either 2000 or 2001, Caltrans (Department of Transportation) notified defendants that it intended to cut off access from the 743 Harrison building to Perry Street (a short street running parallel to Harrison Street apparently behind that building) in order to do a retrofit of part of the I-280 freeway. Defendants negotiated a monetary settlement for that cutoff and, at about the same time, agreed to reduce the rent plaintiff paid for his unit.
In 2004, defendants advised plaintiff that they had no immediate plans to alter the property and that he had been an "ideal tenant, and . . . could stay in the building as long as [he] wanted." As a result, plaintiff did not consider alternative spaces and anticipated a renewal of his lease in 2005. However, later in 2004, defendants decided to redevelop the property as condominiums, obtain the entitlements and permits needed to do so, and then sell the property. They did not advise plaintiff of these plans.
On or about June 3, 2005, defendant Barrett wrote to plaintiff regarding a new lease, the prior one having expired on February 28, 2005. He proposed a substantial increase in plaintiff's rent, i.e., to $7,200 per month. Plaintiff countered with a proposal of a lesser increase, and an oral agreement was reached that plaintiff's rent would be $5,033 per month from October 2005 until October 2006. Plaintiff paid, and defendants apparently accepted, that amount of rent starting in October 2005.
In early 2006, plaintiff learned of a San Francisco Planning Commission hearing on defendants' proposed project to transform the property into a condominium complex to be known as "Gardens at Harrison Street." He attended that hearing on February 16, 2006, with a group opposing the change, and believed that Barrett saw him there. At that hearing, the operation of "The Clay Studio" on the premises was specifically mentioned several times by speakers protesting the proposed zoning change. Plaintiff later wrote a letter to the planning commission opposing the proposed change.
After that hearing, plaintiff received a notice from defendants increasing his rent to $8,900 per month. On July 19, 2006, defendants served him with a "Three Day Notice to Pay Rent or Quit." That notice advised that, if plaintiff did not quit the premises, defendants would "commence legal proceedings against [him]."
*945 Plaintiff paid the requested $8,900 rental amount for the month of July 2006 and the parties commenced negotiations to resolve their dispute. In August 2006, they executed a "Tenancy Termination Agreement" requiring plaintiff to vacate his "live/work" space by November 1, 2006, and leave the premises in "broom clean condition." In consideration of that, defendants promised to (1) return plaintiff's security deposit, (2) require plaintiff "to pay only $5033.00 per month on the first of each month until he vacates" with the balance of the set rate of $8,900 to be "waived if the Tenant vacates on or before the Termination Date and meets all other obligation [sic] of this Agreement."
On August 9, 2006, defendants also executed a "To Whom It May Concern" letter stating that plaintiff had "paid his rent on time" since becoming a tenant in March 1995.
Plaintiff did, in fact, move out, but a "couple of days" after the agreed-upon November 1, 2006, date. This delay was at least partially because Caltrans was blocking the loading doors in the back of the property and the front door was too small. Additionally, Barrett allegedly refused to allow plaintiff an additional couple of days' occupancy at a per diem rate. Per defendants in a letter to plaintiff on December 15, 2006, plaintiff did not leave the premises in "broom clean condition."[1] More significantly, defendants enforced their monetary remedies under that agreement, and charged plaintiff the full $8,900 rent for the interim months and did not refund his security deposit. As of December 15, 2006, defendants claimed plaintiff owed them slightly under $15,000.
Plaintiff filed his 10-cause-of-action complaint on October 30, 2007. In it, his principal charging allegations were that (1) he was "forced to vacate the residential unit . . . in violation of the provisions of the San Francisco Residential Rent Stabilization and Arbitration Ordinance," (2) "as a result of the false promises and misrepresentations of Defendants," he had "entered into a void contract relating to said premises," (3) defendants had "made false representations that the building was going to be demolished and that permits had been obtained, that Plaintiff would have money returned to him, and that Defendants would cooperate in allowing Plaintiff to vacate the premises, and (4) all of this was motivated by defendants' "illwill [sic], with the desire to trick Plaintiff and to harm him for LANDLORD'S pecuniary advantage and out of spite."
*946 As noted, there followed 10 causes of action for, respectively, declaratory relief, misrepresentation, breach of contract, conversion, unfair business practices (under Bus. & Prof. Code, §§ 17200 & 17500), unjust enrichment, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, constructive trust, and violation of the San Francisco Residential Rent Stabilization and Arbitration Ordinance (S.F. Admin. Code, ch. 37).
Defendants filed their section 425.16 motion on April 14, 2008. The trial court heard oral argument on it on May 6, 2008, after having issued a tentative ruling the previous day. It ruled that the first prong of the SLAPP motion regarding the nature of the claim had been sustained by defendants' moving papers as to all 10 causes of action, but that defendants had not sustained the second prong of the statute as to four of the 10 causes of action, i.e., failed to establish that plaintiff had not alleged and could not prove a prima facie case as to four causes of action, namely, those for declaratory relief, breach of contract, unjust enrichment, and breach of the covenant of good faith and fair dealing.
Defendants filed their notice of appeal on May 20, 2008; plaintiff cross-appealed on June 11, 2008, claiming that section 425.16 did not apply to any of his alleged causes of action.
III. DISCUSSION
A trial court order either granting or denying a section 425.16 motion is appealable. (See § 425.16, subd. (j).) And "[w]hether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 [113 Cal.Rptr.2d 625], and cases cited therein; see also Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807 [119 Cal.Rptr.2d 108].)
(1) Because of the large number of appellate decisions construing and applying section 425.16, we have many options from which to choose to summarize the key features of that law and the issues an appellate court must address in reviewing a case arising under it. Given that wide choice, we opt to quote from our own recent decision in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 [74 Cal.Rptr.3d 1] (Feldman): "`A SLAPP suita strategic lawsuit against public participationseeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16known as the anti-SLAPP statuteto provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]' [Citations.] [¶] Determination of a special motion to strike involves a two-part *947 inquiry. `"First, the court decides whether the defendant . . . has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff [here the Feldman cross-complainants] has demonstrated a probability of prevailing on the claim."' [Citation.] `"Put another way, the plaintiff `must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.]" [Citation.]' [Citation.] `Thus, plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.' [Citation.] If the plaintiff fails to carry that burden, the cause of action is `subject to being stricken under the statute.' [Citation.] [¶] . . . [¶] (2) In determining whether . . . cross-defendants have satisfied their burden under the first prong of the section 425.16 analysis, `the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' [Citation.] `"The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning." [Citation.]' [Citation.] Section 425.16 defines an `"act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue,"' to include statements or writings before a judicial proceeding, or any other official proceeding authorized by law and statements or writings made in connection with an issue under consideration or review by a judicial body. [Citations.] `Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]' [Citation.] Nor need defendants or cross-defendants bringing an anti-SLAPP motion prove the suit was intended to or actually did chill their speech. [Citations.]" (Feldman, supra, 160 Cal.App.4th. at pp. 1477-1478, fns. omitted.)
The issue we face here is, shortly and simply, whether plaintiff's 10-cause-of-action lawsuit satisfied the first prong of section 425.16, i.e., was it designed "to chill or punish [defendants'] exercise of constitutional rights to free speech and to petition the government for redress of grievances." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].)
To recapitulate the key facts noted above: Plaintiff rented the "live/work" space at 743 Harrison Street from defendants in 1995 and both resided and operated his "The Clay Studio" business there for over a decade. In 2004, defendants decided to undertake to redevelop the property into condominiums. However, according to the pleadings filed below by both parties, *948 apparently defendants never told their lessees, including plaintiff, about this. Indeed, in their opening brief to us, defendants do not assertor even hintthat there was any such advice; rather, they state, citing plaintiff's declaration in the trial court, that they "told Plaintiff that [they] had no plans for the property" as of 2004. But, in fact, according to them, defendants "wanted to recover the Property in order to redevelop it as a mixed commercial/residential development."
In 2005, the parties attempted to negotiate a new lease for the premises; they were unsuccessful in those efforts, with the result that, in 2006, defendants served plaintiff with a three-day notice to quit. Importantly, however, no unlawful detainer action was ever filed by defendants; rather, what they repeatedly term a "settlement agreement," i.e., the Tenancy Termination Agreement, was negotiated between the parties and signed in August 2006. It required plaintiff to vacate the premises on or before November 1, 2006. Both sides agree that plaintiff was a "couple of days" late in vacating those premises, and defendants claim he also did not leave them in "broom clean" condition. However, and as noted earlier (see fn. 1, ante), defendants' own brief to us suggests that most, if not all, of the material left behind after plaintiff vacated the unit belonged to either defendants or others. In any event, as a result of plaintiff's late departure and alleged lack of a "broom clean" unit, defendants assessed him almost $15,000 and also did not return his rental deposit or other rent payable under the Tenancy Termination Agreement. Or, to put it as defendants do in their opening brief to us: "Plaintiff expected the consideration due to him under the agreement if he performed. Instead, Defendants enforced their rights for Plaintiff's breach." Thus, per defendants, it was the denial of "the consideration due [plaintiff] under the agreement" and defendants' enforcement of "their rights for [his] breach" which triggered plaintiff's October 2007 complaint.
The trial court found that these facts satisfied the first prong of section 425.16. It stated: "Defendants' anti-SLAPP motion is based on the contention that every claim Plaintiff brings arises from a settlement agreement that was entered into to avoid litigation. . . . [¶] Defendants correctly state that settlement agreements, being a part of the litigation process, are protected activity under CCP section 425.16. That includes `communications preparatory or in anticipation of bringing an action.' [Citations.] The Court finds that defendants have met the first prong of Section 425.16."
(3) We disagree with this analysis, because it runs contrary to both (1) authority concerning lawsuits designed to enforce agreements generally and (2) recent authority regarding the application of the SLAPP statute to landlord-tenant disputes. Those authorities establish that where, as here, no litigation is ever commencedalthough possibly contemplated by one side or *949 anotherbut, rather, an agreement entered into to resolve the parties' disputes, a later suit alleging breach of that agreement and related tortious conduct does not constitute the sort of activity encompassed by the SLAPP statute's first prong.
A prime example of a case holding that actions intended to enforce "settlement agreements" does not come within the first prong of the SLAPP statute is Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108 [79 Cal.Rptr.3d 849] (Applied Business). There, pending federal court litigation between a licensor and a licensee had been resolved in 2005 by a settlement agreement providing that the latter would cease using the former's software. Later that year and again in early 2006, the licensor's attorney wrote to the licensee demanding a certification that the licensee had returned all copies of the software to the licensor and was otherwise in compliance with the federal court litigation settlement agreement. When such was not forthcoming, the licensor filed suit in Los Angeles Superior Court alleging causes of action for breach of the settlement agreement and specific performance. The defendant-licensee filed a section 425.16 motion, alleging that the state court case was brought to retaliate against it and as a warning to defendant to keep silent about the licensor's business practices. In support of that motion, the licensee-defendant argued that "a suit alleging a breach of a settlement agreement . . . is necessarily a suit that involves an act in furtherance of a person's right of petition." (Applied Business, at p. 1115.) The licensee argued that the suit attacked protected activity, relying on language in Navellier v. Sletten (2002) 29 Cal.4th 82 [124 Cal.Rptr.2d 530, 52 P.3d 703].
The trial court denied the SLAPP motion and the appellate court affirmed, and did so in words relevant to defendants' arguments in this case regarding agreements in settlement of actual or anticipated litigation: "Here, the gist of plaintiff's complaint is not that defendant did something wrong by acts committed during the course of the underlying federal action, but rather that defendant did something wrong by breaching the settlement agreement after the underlying action had been concluded. Under the explanatory provisions in subdivision (e) of section 425.16, defendant's entering into the settlement agreement during the pendency of the federal case was indeed a protected activity, but defendant's subsequent alleged breach of the settlement agreement after the federal case was concluded is not protected activity because it cannot be said that the alleged breaching activity was undertaken by defendant in furtherance of defendant's right of petition or free speech, as those rights are defined in section 425.16. Thus, the instant suit is based on alleged conduct of defendant that is not protected activity." (Applied Business, supra, 164 Cal.App.4th at p. 1118, some italics added.)
*950 The same principle applies to the drafting and execution of an agreement before the relevant litigation commences. Thus, in Moore v. Shaw (2004) 116 Cal.App.4th 182, 194-197 [10 Cal.Rptr.3d 154], the same division of the Second District that decided Applied Business affirmed a trial court's order denying a SLAPP motion by an attorney who had drafted an agreement for the then trustee of a trust. That agreement effectively eliminated both the status of a previously designated successor trustee and the latter's financial benefits from the trust. The prior successor trustee sued the attorney for negligent and intentional breach of trust, and the attorney filed a SLAPP motion, asserting that her actions arose from her conduct in representing her clients, descendents of the trustor "and their exercise of the constitutional rights of freedom of speech and petition for redress of grievances in the context of the probate of" the estates of two decedents. (Id. at p. 190.) The court had no problem in rejecting this contention, stating that the attorney's conduct in drafting the termination agreement was not "an act in furtherance of the right of petition or free speech" and did not otherwise "arise from protected activity by her [but] arose from her drafting the termination agreement . . . well before the inception of any judicial proceedings." (Id. at pp. 195, 197.)
Recently, the same principle as to the limits of a "protected activity" under the SLAPP statute has been applied in landlord-tenant dispute cases, such as that before us. One of the most important of these cases is Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 [64 Cal.Rptr.3d 488] (Marlin). There, after the landlords had served notice under the Ellis Act (Gov. Code, § 7060 et seq.) that they intended to withdraw certain rental units from the market, the tenants of some of those units brought a declaratory relief action to clarify their rights under that statute. The landlords filed an anti-SLAPP motion, contending that the tenants' complaint arose from the landlords' action in filing and serving the Ellis Act notices, and from other litigation involving the removal of the rental property from the market. The trial court granted the SLAPP motion, thereby striking the tenants' cause of action and dismissed their declaratory relief action.
The Court of Appeal disagreed with the trial court that the SLAPP motion was appropriate and reversed its order. After quoting the key language from section 425.16, subdivision (a), the court wrote: "Even if we assume filing and serving the Ellis Act notice and the notice to vacate constituted protected petitioning or free speech activity `the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.' Rather, the critical question in a SLAPP motion `is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' [¶] Defendants have fallen victim to the logical fallacy post hoc ergo propter hocbecause the notices *951 preceded plaintiffs' complaint the notices must have caused plaintiffs' complaint. The filing and service of the notices may have triggered plaintiffs' complaint and the notices may be evidence in support of plaintiffs' complaint, but they were not the cause of plaintiffs' complaint. Clearly, the cause of plaintiffs' complaint was defendants' allegedly wrongful reliance on the Ellis Act as their authority for terminating plaintiffs' tenancy. Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech." (Marlin, supra, 154 Cal.App.4th at pp. 160-161, fns. omitted.)[2]
In January 2009, perhaps the most pertinent of the appellate decisions discussing the application (or lack thereof) of the SLAPP statute to landlord-tenant disputes was published. It is Clark v. Mazgani (2009) 170 Cal.App.4th 1281 [89 Cal.Rptr.3d 24] (Clark). There, as here, a tenant sued her landlord for fraud and unlawful eviction after the landlord evicted her, allegedly to make the rental unit available to the landlord's daughter; the latter never happened. The trial court granted the landlord's SLAPP motion, holding that the tenant's complaint was essentially based on the landlord's privileged communications. Again, the Second District reversed. In so doing, it held that although "[t]here is no question that the prosecution of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16," on the facts before it, the tenant's complaint was "not premised on Mazgani's protected activities of initiating or prosecuting the unlawful detainer action, but on her removal of the apartment from the rental market and fraudulent eviction of Clark for the purpose of installing a family member who never moved in." (Clark, supra, 170 Cal.App.4th at p. 1286.)
(4) Quoting Marlin, the Clark court continued: "`Terminating a tenancy or removing a property from the rental market are not activities taken in furtherance of the constitutional rights of petition or free speech.' [Citations.] `"[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute."' [Citation.] The pivotal question `"is whether the cause of action is based on the defendant's protected free speech or petitioning activity."' [Citation.]" (Clark, supra, 170 Cal.App.4th at pp. 1286-1287, italics omitted.)
The Clark court then discussed the facts and rulings of both Marlin and DFEH and held: "The same reasoning applies here. Clark's action against *952 Mazgani is not based on Mazgani's filing or service of the notices of intent to evict, it is not based on anything Mazgani said in court or a public proceeding, and it is not based on the fact that Mazgani prosecuted an unlawful detainer action against her. The complaint is based on Mazgani's allegedly unlawful eviction, in that she fraudulently invoked the RSO to evict Clark from her rent-controlled apartment as a ruse to provide housing for her daughter, but never installed her daughter in the apartment as required by that ordinance, and also that she failed to pay Clark's relocation fee." (Clark, supra, 170 Cal.App.4th at p. 1288.)
Because the landlord in Clark relied on our decision (quoted above) in Feldman and also on Birkner v. Lam (2007) 156 Cal.App.4th 275 [67 Cal.Rptr.3d 190] (Birkner), the Clark court distinguished those cases: "In Birkner, tenants sued their landlord for wrongful eviction in violation of San Francisco's rent control ordinance, negligence, breach of the covenant of quiet enjoyment and intentional infliction of emotional distress. [Citation.] The sole basis for liability was the landlord's service of an eviction notice and his refusal to rescind it after the tenants informed him they were exempt from eviction based on age and length of tenancy. The court acknowledged the rule articulated in Marlin, that terminating a tenancy or removing a property from the rental market does not constitute an activity taken in furtherance of the constitutional right of petition or free speech. [Citation.] But, it found the circumstances of Marlin distinct. In Marlin, the tenants' claims were based on their contention that the landlord was not entitled to rely on the Ellis Act to evict them. In contrast, in Birkner, the gravamen of the complaint was the landlord's service of the eviction notice under the rent ordinance and his refusal to rescind it, activities indisputably protected under the anti-SLAPP statute. [Citation.] [¶] In Feldman [citation], tenants refused to vacate an apartment after the landlord demanded higher rent. The landlord filed an unlawful detainer action. The tenants filed a cross-complaint alleging retaliatory eviction, negligence, negligent misrepresentation, breach of the covenant of quiet enjoyment, wrongful eviction, breach of contract and unfair business practices. The unlawful detainer action was dismissed, and the landlord moved to strike the cross-complaint as a SLAPP suit. The Court of Appeal [i.e., this court] found that, with the exception of the claim of negligent misrepresentation, the tenants' cross-complaint was based on the filing of the unlawful detainer action, service of the notice to quit, and statements made by the landlord's agent in connection with the threatened unlawful detainer. Those activities were not merely evidence of the landlord's wrongdoing or activities which `triggered' the filing of an action that arose out of some other independent activity. On the contrary, as was the case in Birkner, they were the challenged activities and the bases for all but one cause of action. [Citation.]" (Clark, supra, 170 Cal.App.4th at pp. 1288-1289, fn. & italics omitted.)
*953 The Clark court then summed up the critical distinction between the facts before it and those before us in Feldman and the court in Birkner: "The pivotal distinction between the circumstances in Marlin . . . on one hand, and Birkner and Feldman on the other, is whether an actual or contemplated unlawful detainer action by a landlord (unquestionably a protected petitioning activity) merely `preceded' or `triggered' the tenant's lawsuit, or whether it was instead the `basis' or `cause' of that suit." (Clark, supra, 170 Cal.App.4th at p. 1289.)[3]
We believe the law just summarized mandates a reversal of the trial court's order in this case. As noted above, that court held that the defendant-landlords "have met the first prong of Section 425.16" because "settlement agreements, being a part of the litigation process, are protected activity under CCP section 425.16" and that such includes "`communications preparatory or in anticipation of bringing an action.'" But plaintiff's action here did not challenge any "communications preparatory [to] or in anticipation of" a lawsuit. Rather, it challenged defendants' actions in allegedly breaching the Tenancy Termination Agreement the parties had entered into after plaintiff would not meet their new rental demands, demands allegedly made because of defendants' desire to convert their property into condominiums. It was also based on the landlords' failure to return plaintiff's rental deposit and other promised refunds, because he was a "couple of days" late in moving out of his unit and had not left it "broom clean"apparently because of material still in the unit belonging to the landlords, their contractor, and an earlier tenant.
Defendants themselves concede that essentially this was the case via the last two sentences of the "Statement of Facts" section of their opening brief, which reads: "Plaintiff expected the consideration due to him under the agreement if he performed. Instead, Defendants enforced their rights for Plaintiff's breach." Nothing in that summary of the factual background of plaintiff's lawsuit suggests, even slightly, any "protected activity" by defendants.
*954 Because almost none of the cases noted above were cited or discussed in the parties' original briefs to this court,[4] we asked for and received supplemental briefs from both. In their supplemental brief, defendants do not explicitly identify the "protected activity" they undertook prior to plaintiff's lawsuit, but we deduce from some of the language in that brief that they contend it consisted of "enforcement of an agreement entered into to avoid litigation" or a "communication to avoid litigation." But no case cited by them stands for the proposition that such does now, or ever has, constituted the requisite "protected activity."
For example, defendants contend that Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918 [20 Cal.Rptr.3d 385] (Blanchard) supports their position. However, in that case, the parties attacking the SLAPP motion did not even contest the applicability of the first prong of the statute. Nor could they, as the litigation involved a Business and Professions Code section 17200 lawsuit triggered by the defendants' sending of a demand letter "in advance of, or to avoid, litigation to vindicate its right not to have its programming pirated." (Blanchard, supra, 123 Cal.App.4th at p. 918.)
Defendants also cite Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 838 [36 Cal.Rptr.3d 385], for the proposition that "[s]ettlements of litigation are protected by the SLAPP statute." But, as noted above, the "Termination of Tenancy Agreement" did not settle any litigation. Finally, defendants' efforts to distinguish the cases discussed above and their passing references to other authorities are both quite unpersuasive.[5]
*955 In the present case, there was no litigation commenced by the defendant-landlords, not even an unlawful detainer action. The maximum they did to evict plaintiff was raise his rent and, when the two sides couldn't agree on a new rental agreement, serve him with a three-day notice to quit. A few weeks later, that notice was effectively superseded by the Tenancy Termination Agreement. This case is, therefore, much more akin to Marlin and Clark, in both of which the appellate courts found no relevant prior litigation or threats of litigation by the landlord before the tenant's lawsuit triggering the SLAPP motion. In our Feldman case, there was an unlawful detainer action filed by the landlords[6] and, in Birkner, both the service of a termination notice and the landlord's refusal to rescind that notice after the tenants advised him that they constituted a "protected household." (See Birkner, supra, 156 Cal.App.4th at pp. 283-284.)
Further, defendants' contention that, because plaintiff's lawsuit concerns a "settlement agreement" negotiated between the parties, a SLAPP motion is appropriate regarding an action alleging its breach is simply incorrect, as the Allied Business decision discussed above makes clear. In that case, the "settlement agreement" actually settled litigation; here, it did not, but only resolvedor attempted to resolvea landlord-tenant dispute over the amount of rent payable. If the first prong of section 425.16 was not satisfied in Applied Business, it surely is not here. Put another way: an unsuccessful attempt by landlords to settle a dispute with a tenant does not constitute "protected activity" under the first prong of section 425.16.
(5) For all the reasons discussed above, we hold that defendants' section 425.16 motion in the trial court did not, on the facts and pleadings of this case, satisfy the first prong of that statute and that, therefore, the trial court erred in granting it as to any of the causes of action in plaintiff's complaint. We therefore deny defendants' appeal and grant plaintiff's cross-appeal and reverse the trial court's order.
*956 IV. DISPOSITION
The order appealed from is reversed. Costs on appeal are awarded to plaintiff and appellant Delois.
Kline, P. J., and Richman, J., concurred.
NOTES
[1] However, in their opening brief to us, defendants concede that "[m]ost, but not all, of the material left behind had been put there by [defendants], their contractors, or the prior tenant. However, Plaintiff could have made an exception for this material in the settlement agreement, but did not."
[2] Other appellate decisions involving rental property disputes not triggering section 425.16 include Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1317-1319 [135 Cal.Rptr.2d 903], and Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1283-1288 [65 Cal.Rptr.3d 469] (DFEH).
[3] Meaning, of course, that in the latter circumstance the first prong is satisfied, but not in the former. Interestingly, this wording was quoted in a recent secondary discussion of when landlord-tenant litigation triggers the first prong of the SLAPP statute and when it does not. (See Miller & Starr, Real Estate Newsalert (May 2009) New Cases: Landlord and Tenant.) Also, and prior to Clark and its discussion regarding what is and what is not "protected activity" under section 425.16 in landlord-tenant disputes, a related secondary authority summed up some of the other authority discussed above thusly: "The boundary line between what is and what is not, within the scope of the anti-SLAPP statute is not always predictably clear, and the courts are required to analyze each fact situation with detailed attention to whether the conduct called into question by the special motion was in furtherance of the right of free speech or petition." (7 Miller & Starr, Cal. Real Estate (3d ed. 2008-2009 Supp.) § 19:241, p. 21.)
[4] Before oral argument, we cited many of these cases to counsel and suggested they be prepared to discuss them. At oral argument, counsel for defendants conceded that he was aware of those cases, but had opted not to discuss them in his briefs to us. We thus respectfully refer that counsel to this court's comments on that subject in Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82-83, footnote 9 [65 Cal.Rptr.3d 716].
[5] Other than Feldman and Birkner, defendants cite no landlord-tenant dispute cases even arguably to the contrary. For example, cases such as Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 [103 Cal.Rptr.2d 174] (condominium owner sued an attorney who represented his tenants in unlawful detainer actions) and Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 [81 Cal.Rptr.2d 471, 969 P.2d 564] (Briggs) (owner of rental property sued a non-profit provider of tenant counseling services) relied upon by them involved activity clearly protected under the anti-SLAPP statute, i.e., the filing of lawsuits. Appellants also citeas did the trial courtFlatley v. Mauro (2006) 39 Cal.4th 299, 322 [46 Cal.Rptr.3d 606, 139 P.3d 2] (Flatley) as supporting the position that "settlement agreements, being part of the litigation process, are protected activity under CCP section 425.16." But all Flatley did is, in a footnote at the cited page, quote from Briggs, supra, 19 Cal.4th at page 1115, that "`"communications preparatory to or in anticipation of bringing an action or other official proceeding"' are protected by section 425.16." (Flatley, supra, 39 Cal.4th at p. 322, fn. 11.) But no such communication is cited or relied upon here by defendants. Finally, in their supplemental brief, defendants cite Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 [63 Cal.Rptr.3d 398, 163 P.3d 89]. We are mystified by this citation, as that case had nothing whatsoever to do with the SLAPP statute. Rather, it addressed the extent to which a Santa Monica "Tenant Harassment" ordinance was preempted by the litigation privilege of Civil Code section 47, subdivision (b). (Action Apartment, at pp. 1241-1252.)
[6] In Feldman we held that, because of (1) the previous unlawful detainer action filed by the landlord and (2) various "threatening comments" made by the landlord's agent (Feldman, supra, 160 Cal.App.4th at p. 1474), most of the causes of action in the tenants' later action were subject to the SLAPP statute. However, and significantly, we held that such was not the case as to their cause of action for negligent misrepresentation. This was so, we concluded, because that cause of action "does not appear to be based upon the communications or communicative conduct covered by the litigation privilege." (Id. at p. 1493.) Just so here.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thom Greco, :
Petitioner :
:
v. : No. 260 C.D. 2016
: Submitted: June 9, 2017
Department of General Services, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 10, 2017
Thom Greco (Greco) appeals a final determination by the Office of
Open Records (OOR) finding his appeal moot because the Department of General
Services (Department) provided him with the documents he requested in his Right-
to-Know Law1 request after he filed his appeal. For the following reasons, we
reverse and remand.
I.
The Department’s Bureau of Real Estate solicited proposals (SFPs) to
lease for office space. On June 2, 2015, Greco responded to an SFP and on August
1
The Right-to-Know Law, Act of February 14, 2008, P.L. 6, No. 3, 65 P.S. § 67.101-104.
14, 2015, he received an email from Pete Kafkalas, the Real Estate Coordinator
from the Department’s Bureau of Real Estate, which said: “Please submit your
Best & Final Offers [(BAFO)] for the above SFP to me by close of business
Friday, 21 August [2015].” (Reproduced Record (R.R.) at 1a.) In September
2015, Greco received a letter from the Chief of the Division of Leasing at the
Department, informing him that “the Commonwealth has completed its evaluation
of all proposals received and has tentatively selected another proposal for this new
lease, which is contingent upon all necessary approvals being obtained . . . .” (R.R.
at 2a.) Greco then submitted a Right-to-Know Law request to the Department,
requesting “[a]ll responding bids submitted for the SFP # 94715 - and the Best And
Final Offers that were to be submitted by August 21, 2015 to Real Estate
Coordinator – Pete Kafkalas.” (R.R. at 3a.)
Because it had not yet awarded a lease, the Department denied the
request pursuant to Section 708(b)(26) of the Right-to-Know Law2 which exempts
2
Section 708(b)(26) of the Right-to-Know Law provides that the following is exempt
from public access by a requester under the Act:
A proposal pertaining to agency procurement or disposal of
supplies, services or construction prior to the award of the contract
or prior to the opening and rejection of all bids; financial
information of a bidder or offeror requested in an invitation for bid
or request for proposals to demonstrate the bidder’s or offeror’s
economic capability; or the identity of members, notes and other
records of agency proposal evaluation committees established
under 62 Pa.C.S. § 513 (relating to competitive sealed proposals).
65 P.S. § 67.708(b)(26).
2
bid or proposal documents from public access prior to award of the bid or proposal.
In its denial letter, the Department also stated:
Generally, the procedure to lease office space consists of
a series of sequential actions which begins by identifying
the need for additional office space or the evaluation of
existing office space to determine what will meet an
agency’s needs. Reviews of and by various legal,
comptroller and audit staff of several agencies including
independent agencies such as those in the Pennsylvania
Attorney General’s Office and State Treasurer are
embedded into the solicitation, award and contracting
process to protect Commonwealth interests, to ensure the
availability and proper use of funds, to guarantee fair and
reasonable pricing, and to maintain integrity. . . . After
all required reviews have been completed, the Bureau of
Real Estate presents the proposed lease to the Board of
Commissioners of Public Grounds and Buildings for
approval. The lease is awarded upon final approval by
the Secretary of General Services.
(R.R. at 6a.)
Greco then appealed to the OOR, contending that the contract had, in
fact, been awarded once a proposal had been selected and not when the lease is
approved by the Department. Greco also contended that the email requesting that
the bidders submit their best and final offers was a new request for proposals,
effectively rejecting the solicitation of bids, which would make the exemption
contained in Section 708(b)(26) of the RTKL inapplicable. 65 P.S. §
67.708(b)(26).
3
Shortly after he appealed, Greco received a letter from the Department
informing him that it was “re-evaluating [its] needs,” and therefore the SFP was
cancelled. (R.R. at 14a.) Greco received a subsequent letter from the Department
granting his records request. After providing Greco with the responsive records,
the Department submitted a position statement to the OOR contending that the
appeal was moot.3 Although admitting that he received the documents that he
requested, Greco contended that the OOR should decide the matter anyway
because it was capable of being repeated since his next bid proposal could also be
rejected, necessitating a filing of a new RTKL request that would be denied for the
same reasons here, and the matter involved a matter of great public importance.
The OOR dismissed the appeal as moot finding that the exceptions to the mootness
doctrine did not apply because there was no evidence that the events set forth in the
appeal were likely to be repeated4 and the matter was not one of public importance.
This appeal followed.5
3
A case is moot where there is no actual case or controversy in existence at all states of
the controversy. Pap’s A.M. v. City of Erie, 812 A.2d 591, 599 (Pa. 2002). Although we
generally will not decide moot cases, exceptions are made when (1) the conduct complained of is
capable of repetition yet evading review, or (2) the matter involves questions important to the
public interest, or (3) the matter will cause one party to suffer some detriment without the
Court’s decision. Clinkscale v. Department of Public Welfare, 101 A.3d 137, 139 (Pa. Cmwlth.
2014).
4
We note that the OOR in Walsh v. School District of Philadelphia, OOR Dkt. AP 201-
1080, determined that a BAFO was, in essence, a supplement to the proposal and not a “rejection
of all bids” under the RTKL.
5
This Court independently reviews the OOR’s orders and may substitute its own findings
of fact for that of the agency. Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth.
2010) (holding that the Commonwealth Court has de novo review over appeals of final
determinations of the OOR), aff’d 75 A.3d 453 (Pa. 2013).
4
II.
Greco appeals, again contending that his appeal falls within an
exception to the mootness doctrine because the Department’s denial based upon
Section 708(b)(26) of the RTKL is subject to repetition that will escape review,
and that it is a matter of public importance because the citizens of Pennsylvania are
entitled to transparency in obtaining information pertaining to activities of their
government.
To fall within the capable repetition yet evading review exception,
two elements must be established: (1) that the duration of the challenged action is
too short to be fully litigated prior to its cessation or expiration, and (2) that there is
a reasonable expectation that the complaining party will be subjected to the same
action again. Philadelphia Public School Notebook v. School District of
Philadelphia, 49 A.3d 445, 449 (Pa. Cmwlth. 2012). Greco argues that the
Department’s request for a BAFO constituted a rejection of the initial proposals,
causing the proposals to lose their exemption under Section 708(b)(26) of the
RTKL. He further argues that because there was such a short time between the
rejection of those original bids (August 14, 2015, the date of the request for
BAFOs) and the date that the BAFOs were to be submitted (August 21, 2015), the
matter also could not be fully litigated.
In determining whether a document should be released, considerations
of the derivative effects of granting or denying a public record are irrelevant; the
only issues to be considered are whether a record is public and whether it falls
within one of the exemptions to access. The RTKL makes clear that “[a]
5
Commonwealth agency may not deny a [requestor] access to a public record due to
the intended use of the public record by the [requestor] unless otherwise provided
by law.” Section 301(b) of the RTKL, 65 P.S. § 67.301(b). Correspondingly, the
RTKL prohibits the agency from making it a requirement to disclose the purpose
or motive in requesting access to records. Section 1308 of the RTKL, 65 P.S. §
67.1308. That means “[u]nder the [RTKL], the right to examine a public record is
not based on whether the person requesting the disclosure is affected by the records
or if his or her motives are not pure in seeking them, but whether any person’s
rights are fixed.” Weaver v. Department of Corrections, 702 A.2d 370, 371 (Pa.
Cmwlth. 1997) (citing Marvel v. Dalrymple, 393 A.2d 494, 497 (Pa. Cmwlth.
1978) and Tribune-Review Publishing Co. v. Allegheny County Housing Authority,
662 A.2d 677 (Pa. Cmwlth. 1995)) (emphasis in Weaver). Moreover:
Under the RTKL, whether the document is accessible is
based only on whether a document is a public record,
and, if so, whether it falls within an exemption that
allows that it not be disclosed. The status of the
individual requesting the record and the reason for the
request, good or bad, are irrelevant as to whether a
document must be made accessible under Section 301(b)
[of the RTKL, 65 P.S. § 67.301(b)]. . . .
Hunsicker v. Pennsylvania State Police, 93 A.3d 911, 913 (Pa. Cmwlth. 2014).
Because this Court only looks to whether a document constitutes a
public record, any issue involving whether a document is a public record, even if
an issue is capable of repetition, will never escape review. In this case, though,
because all the bids or proposals for a contract will become public records once the
6
contract is awarded or all bids are rejected, the issue is not whether a document
will be released. Instead, the issue here is when those documents will be released,
which is determined under Section 708(b)(26) of the RTKL. 65 P.S. §
67.708(b)(26).
The Department contends the matter is incapable of repetition and that
it is unlikely that Greco will suffer any detriment if the matters he raises are not
resolved because it is unlikely that all bids will be rejected and he will have to file
a new RTKL request. However, if his positions are correct that the selection of the
proposal is tantamount to the award of a contract or the BAFO is tantamount to the
rejection of a bid, the matter is capable of repetition every time the Department
selects a proposal or seeks BAFO from the proposers. Also, if he is correct, he will
suffer a detriment because he will not receive public records when he is entitled to
receive them.
As to the issue of whether the matter will escape review, the
Department contends that the matter will not escape review for the same reasons
set forth in its letter of November 6, 2015, where it noted that there are a number of
steps that need to be taken before a contract can be executed. Those steps involve
submitting the proposal to a series of legal, comptroller and audit staffs before
submitting a proposed lease to the Board of Commissions of Public Grounds and
Buildings for approval and finally obtaining approval by the Secretary of General
Services. The Department argues that given the strict time limits that it has to
respond to a request and the OOR has to make a decision, issues involving when a
7
contract is awarded or rejected within the meaning of Section 708(b)(26) of the
RTKL can be fully litigated prior to the award/execution of a contract.
While the issues in this case may possibly go through the
administrative process prior to the award of a contract, there is no evidence that the
proposal process is so lengthy that it will allow for this court to review the matter,
which is significant because we conduct de novo review of the OOR’s decision.
Moreover, the issue involved here – i.e., what constitutes an award of a contract or
the rejection of all bids – is one that also involves agencies that can award
contracts more expeditiously. In any event, just as we do not look to any
derivative consequences incurred from a request, similarly, we cannot decide
whether an issue will escape review when that issue is within the control of the
Department to move the contract approval process forward to make an appeal
moot.
Accordingly, because this matter is capable of repetition and can
escape review, we reverse the OOR’s decision and remand the matter to the OOR
for a determination on the merits.6
________________________________
DAN PELLEGRINI, Senior Judge
Judge Cosgrove did not participate in the decision of this case.
6
Because of the way we have resolved this matter, we need not address whether this
matter falls within the public importance exception to the mootness doctrine.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thom Greco, :
Petitioner :
:
v. : No. 260 C.D. 2016
:
Department of General Services, :
Respondent :
ORDER
AND NOW, this 10th day of July, 2017, the order of the Office of
Open Records dated January 14, 2016, in the above-captioned matter is reversed
and this matter is remanded to the Office of Open Records in accordance with this
opinion.
Jurisdiction relinquished.
________________________________
DAN PELLEGRINI, Senior Judge
| {
"pile_set_name": "FreeLaw"
} |
[Cite as L.B. v. D.B., 2018-Ohio-4163.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
L.B. C.A. No. 17CA0081-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
D.B. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16DV0283
DECISION AND JOURNAL ENTRY
Dated: October 15, 2018
TEODOSIO, Judge.
{¶1} D.B. appeals the judgment of the Medina County Court of Common Pleas,
Domestic Relations Division, overruling objections and adopting the magistrate’s decision
granting a domestic violence civil protection order. We reverse and remand.
I.
{¶2} L.B. filed a petition for a domestic violence civil protection order against D.B. in
December 2016. A hearing was held before the magistrate in February 2017, with the magistrate
issuing a decision and an order of protection on February 9, 2017. In its judgment entry of
November 1, 2017, the trial court overruled objections filed by D.B. and adopted the decision of
the magistrate. D.B. now appeals, raising two assignment of error.
II.
ASSIGNMENT OF ERROR ONE
A DUE PROCESS VIOLATION OCCURS WHEN THE REQUIRED WEIGHT
OF THE EVIDENCE, HERE, A PREPONDERANCE, IS SKEWED BY
2
ADDING[] “VIEWING THE EVIDENCE IN THE LIGHT MOST
FAVORABLE TO (THE PETITIONER)”. [SIC] PREPONDERANCE OF
EVIDENCE IS THE DUE PROCESS STANDARD[,] NOT PREPONDERANCE
OF EVIDENCE VIEWED IN [THE] LIGHT MOST FAVORABLE TO
PETITIONER.
{¶3} In his first assignment of error, D.B. argues the trial court erred by applying the
incorrect evidentiary standard. In its order overruling D.B.’s objections and adopting the
magistrate’s decision that issued a domestic violence civil protection order, the trial court stated:
“After viewing the evidence in the light most favorable to Petitioner, the Court finds that a
reasonable trier of fact could find that Petitioner demonstrated by a preponderance of the
evidence that a domestic violence civil protection order should issue.” D.B. contends the trial
court erred by “viewing the evidence in the light most favorable to Petitioner[.]” We agree.
{¶4} “In order to grant a DVCPO, the [trial] court must conclude that the petitioner has
demonstrated by a preponderance of the evidence that the petitioner and/or the petitioner’s
family or household members are in danger of domestic violence.” B.C. v. A.S., 9th Dist.
Medina No. 13CA0020-M, 2014-Ohio-1326, ¶ 7. In contrast, when an appellate court is
assessing the sufficiency of the evidence for a trial court’s decision to grant a civil protection
order, it is the appellate court’s role to “determine whether, viewing the evidence in the light
most favorable to [the petitioner], a reasonable trier of fact could find that the petitioner
demonstrated by a preponderance of the evidence that a civil protection order should issue.”
R.C. v. J.G., 9th Dist. Medina No. 12CA0081-M, 2013-Ohio-4265, ¶ 7, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, and State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus.
3
{¶5} The trial court applied an incorrect evidentiary standard in using the standard of
review to be applied by an appellate court in assessing the sufficiency of the evidence for a trial
court’s decision to grant a civil protection order. D.B.’s first assignment of error is sustained.
ASSIGNMENT OF ERROR TWO
WHEN A COURT COUPLES ITS’ [SIC] DECISION WITH HAVING TO
VIEW THE EVIDENCE OF THE PETITIONER IN THE LIGHT MOST
FAVORABLE, THEREBY INSERTING A DISPARATE THEORY INTO
PREPONDERANCE OF THE EVIDENCE, THE DECISION OF THE COURT
IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} In his second assignment of error, D.B. argues the trial court’s decision was
against the manifest weight of the evidence as a result of the application of the incorrect
evidentiary standard. We do not reach the merits of assignment of error two because our
resolution of the first assignment of error necessitates further consideration by the trial court.
We therefore decline to address D.B.’s second assignment of error. See App.R. 12(A)(1)(c).
III.
{¶7} D.B.’s first assignment of error is sustained. We decline to address the second
assignment of error. The judgment of the Medina County Court of Common Pleas, Domestic
Relations Division, is reversed and remanded for proceedings consistent with this decision.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
4
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
L. RAY JONES, Attorney at Law, for Appellant.
CARLA BOYLE SMALL, Attorney at Law, for Appellee.
| {
"pile_set_name": "FreeLaw"
} |
779 F.2d 37
BBB Envtl Mgmt Corp.v.Envirosure Mgmt
85-7383
United States Court of Appeals,Second Circuit.
10/4/85
1
S.D.N.Y.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
FILED
Nov 21, 2018
10:38 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ANGELA DOUGLAS, ) Docket No. 2018-05-0914
Employee, )
v. )
)
ADIENT USA, LLC, ) State File No. 66160-2017
Employer, )
And )
)
OLD REPUBLIC INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This matter came before the Court on November 14, 2018, for an Expedited
Hearing focusing on Ms. Douglas’s entitlement to medical benefits. The central legal
issues are whether Ms. Douglas’s claim is barred by failure to give proper notice and, if
not, whether she is likely to establish at a hearing on the merits that her injury arose
primarily out of and in the course and scope of her employment. For the reasons below,
the Court holds Ms. Douglas is not entitled to the requested benefits at this time.
History of Claim
Ms. Douglas testified that she suffered a left-knee injury while working for
Adient. She was initially unsure about the exact date of injury but later determined that it
occurred on July 24, 2017, the same day Adient had a visitor from Nissan, for whom
Adient built car seats. Ms. Douglas described working at two stations that were just a
few steps apart. As she turned to go from one station to the other, she felt a pop in her
left knee. This caused her to step off the line for a few moments, but she returned to
work and finished her shift. When, Ms. Douglas returned to work the next week, her
knee was painful and swollen. She began icing it in Adient’s first aid station during her
work breaks.
1
Ms. Douglas had an annual medical checkup on August 21 with her personal
physician, Dr. Dana Chandler. Dr. Chandler noted an approximately three-week history
of sharp and severe left knee pain. Ms. Douglas reported difficulty with stairs and said
her knee would “give out” at times. Although Ms. Douglas testified that she told Dr.
Chandler about injuring her knee at work, Dr. Chandler noted “no overt trauma.” Dr.
Chandler ordered x-rays and prescribed Prednisone.
The next day, Ms. Douglas reported the injury to Human Resources and filled out
an injury report. Adient subsequently denied the claim, and Ms. Douglas sought
treatment on her own with Dr. Cason Shirley.
Dr. Shirley’s October 19 record gave a July 24 onset date, when Ms. Douglas
“was putting a cushion in a seat and twisted her knee and it popped.” He diagnosed a
medial meniscus tear and gave her a lidocaine injection.
David Miller, Adient’s Health and Safety Lead, and Steve Williams, Production
Superintendent, testified that they knew Ms. Douglas was icing her knee during her work
breaks. However, Adient was unaware that Ms. Douglas’s knee problem was work-
related until she filled out her injury report on August 22. They also explained that the
delay in learning of the alleged injury impaired their ability to investigate the claim.
Specifically, they were unable to review any video or speak to any witnesses with
memory of the incident.
Ms. Douglas asked the Court to order Adient to provide medical treatment for her
knee.
Adient contended that Ms. Douglas’s claim is barred by her failure to provide
proper notice of an injury. It also argued that, even if notice was legally adequate, Ms.
Douglas’s injury is not compensable because it was idiopathic. Finally, Adient
maintained that Ms. Douglas failed to meet her burden of proving that her knee injury
arose primarily out of and in the course and scope of her employment. For these reasons,
it asked the Court to deny her request.
Findings of Fact and Conclusions of Law
Standard applied
Ms. Douglas need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, she must present
sufficient evidence she is likely to prevail at a hearing on the merits. See Tenn. Code
Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
2
Notice
Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured
employee must give written notice of an injury within fifteen days unless it can be shown
that the employer had actual knowledge of the accident or that “reasonable excuse for
failure to give the notice is made to the satisfaction of the tribunal.”
When the employer raises lack of notice as a defense, the burden is on the
employee to show either the employer had actual notice, that she provided notice, or that
her failure to give notice was reasonable under the circumstances. Hosford v. Red Rover
Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *15 (Oct. 2, 2014). Our Appeals
Board explained the notice requirement “exists so that an employer will have an
opportunity to make a timely investigation of the facts while still readily accessible, and
to enable the employer to provide timely and proper treatment for an injured employee.”
Id. Guided by this authority, the Court must determine whether Ms. Douglas rebutted
Adient’s notice defense.
The Court first finds Adient had no “actual notice” of the injury. There is no
evidence that any representative of Adient authorized to receive notice knew of the
incident when it occurred.
Second, the Court turns to whether Ms. Douglas provided notice to Adient within
fifteen days. On this point, Ms. Douglas acknowledged she provided no written notice of
her alleged July 24 injury until August 22. Accordingly, the Court finds she failed to
provide timely notice.
Next, the Court finds no reasonable excuse for Ms. Douglas’s failure to provide
timely notice of her injury. In Buckner v. Eaton Corp., 2016 TN Wrk. Comp. App. Bd.
LEXIS 84 (Nov. 9, 2016), the employee sustained an injury on July 21, 2015, at a
“specific time and place performing a specific task.” However, he did not report his
injury until September 2, 2015, forty-three days later. Id. at *3. Under such
circumstances, the Appeals Board concluded “that Employee’s excuse for failing to
provide timely notice of his work injury was not ‘reasonable,’ the standard mandated by
the legislature in section 50-6-201(a)(1).” Id. at *11. Specifically, “this was not a case
where symptoms developed gradually over time or were not immediately apparent.”
Rather, the employee “was immediately aware he hurt his back and shortly thereafter was
. . . unable to work.” Id.
The facts of this case are similar. Like the employee in Buckner, Ms. Douglas
alleged an injury at a specific time and place while performing a specific task. She
testified that she felt her knee pop on July 24, 2017, which caused her to take a short
break from her duties. Although she kept working that day, she soon developed swelling
3
and pain. Thus, any delayed reporting of her injury is not excused on grounds that her
“symptoms developed gradually over time or were not immediately apparent.” See
Buckner, at *11.
However, the inquiry does not end there. Tennessee Code Annotated section 50-
6-201(a)(3) provides that the failure to give timely notice of a work-related injury will not
bar compensation “unless the employer can show, to the satisfaction of the workers'
compensation judge before which the matter is pending, that the employer was prejudiced
by the failure to give the proper notice, and then only to the extent of the prejudice.”
Accordingly, the Court must determine whether Adient suffered prejudice, and if so, to
what extent any such prejudice affects the benefits to which Ms. Douglas may be entitled.
Prejudice may be found if the employer is denied the opportunity to make an
investigation while the facts are accessible or to enable it to provide timely and proper
treatment for the injured employee. Masters v. Industrial Garments Mfg. Co., 595
S.W.2d 811, 815 (Tenn. 1980) citing York v. Federal Chemical Co., 216 S.W.2d 725
(Tenn. 1949).
Adient did not contend that the late notice prevented it from providing proper
medical treatment for Ms. Douglas. Instead, Mr. Miller testified that he didn’t have a
chance to conduct a proper investigation because “six weeks later, nobody can remember
anything” and video of the incident was not available due to the time elapsed. This
testimony is not entirely persuasive, as Mr. Miller overstated the number of weeks
between the alleged injury and the date of notice, which was actually less than thirty
days. Further, Mr. Miller did not testify that he actually tried to identify and interview
the witnesses to the incident, but implied that it would have been difficult or unfruitful to
do so. This inference is speculative and not proof of actual prejudice.
The testimony about the video, however, is substantive. Adient had a right to
evaluate Ms. Douglas’s claim, including reviewing video of her work area to determine
whether her description of the injury was credible. The video was unavailable because of
her delay in reporting the injury. While the prejudicial effect appears slight in this case,
the fact remains that the delay impaired Adient’s ability to investigate the claim. The
Court must conclude, therefore, that Ms. Douglas appears unlikely to rebut Adient’s
notice defense.1
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Douglas’s claim against Adient and its workers’ compensation carrier for the
requested medical benefits is denied at this time.
1
Because Ms. Douglas appears unlikely to overcome the notice defense, the Court need not address
Adient’s causation arguments.
4
2. This matter is set for a Scheduling Hearing on January 15, 2019, at 10:00 a.m.
You must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure to
call may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).
ENTERED this the 21st day of November, 2018.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Angela Douglas
2. October 18, 2017 office note of Dr. Cason Shirley
3. Medical records from Dr. Dana Chandler
4. Affidavits of David Miller, Steve Williams, Aaron Cowart, and Tony Simeri
5. Injury report
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Adient’s Pre-Hearing Statement
5. Adient’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 21st day of
November, 2018.
5
Name Certified Fax Email Service sent to:
Mail
Angela Douglas, X X 108 East Merchant St.
Employee Mt. Pleasant, TN 38474
[email protected]
Kitty Boyte, X [email protected]
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
[email protected]
6
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082
| {
"pile_set_name": "FreeLaw"
} |
22 F.Supp. 705 (1937)
LEWIS INVISIBLE STITCH MACH. CO.
v.
COLUMBIA BLINDSTITCH MACH. MFG. CORPORATION (three cases).
District Court, S. D. New York.
December 17, 1937.
*706 Victor D. Borst, of New York City (S. George Tate, of Washington, D. C., of counsel), for plaintiff.
Henry L. Burkitt, of New York City, for defendant.
WOOLSEY, District Judge.
I hold that the single claim of the table patent No. 1,764,573 is invalid as not involving any inventive act over the prior art.
I hold that claims 1, 3, 8, and 10 of the automatic disc patent No. 1,905,291, on which the plaintiff relies in the first cause of action, are valid but not infringed.
I hold that claims 1, 19, 20, 21, and 22 of the automatic disc patent No. 1,989,602, on which the plaintiff relies in the first cause of action, are valid and infringed by what we have called the defendant's earlier disc.
I hold that claims 1 and 19 of the automatic disc patent No. 1,989,602, on which the plaintiff relies in the second cause of action, are valid and infringed by what we have called the defendant's later disc.
In both the first and second causes of action, I find that the defendant has sustained its charge of some unfair competition on the part of the plaintiff.
*707 I hold that in the third suit, involving the Dearborn automatic patent No. 1,964,381, the patent is valid and infringed.
I hold that, balancing the equities on the facts before me, the proper disposition of the matter is to allow the plaintiff the usual injunction against further infringement by the defendant of the claims of the patents which I have found valid and infringed, and to allow the defendant an injunction on the ground of unfair competition as hereinafter indicated, but I will not allow the plaintiff any damages or accounting for profits, and I will not allow the defendant any accounting for damages on its counterclaim for unfair competition.
I hold that neither party shall have costs.
I. These three suits have been tried together most appropriately because they are to a large extent intertwined in their evidence and in their implications. All of them involve the sewing machine art and the subdivision of that art containing what are known as blindstitch sewing machines.
The first case, equity No. 80/86, founded its claim for infringement on three patents, namely, what we have called during the trial the table patent No. 1,764,573, which was issued to Mueller on June 17, 1930, what we have called during the trial the manual disc patent No. 1,905,391, issued to Mueller April 25, 1933, and what we have called during the trial the automatic disc patent No. 1,989,602, issued to Mueller on January 29, 1935.
In the first case there is a counterclaim for unfair competition filed by the defendant, which, after an appeal to the Circuit Court of Appeals on an interlocutory matter which was dismissed, was revamped in pursuance of the dicta contained in the opinion of that court. See Lewis Invisible Stitch Machine Company v. Columbia Blindstitch Machine Manufacturing Corporation, 2 Cir., 80 F.2d 862.
This first suit, equity No. 80/86, was aimed at a device of the defendant which it claims that it no longer makes.
The second suit, equity No. 82/365, is founded on two patents, the so-called table patent, and the so-called automatic disc patent No. 1,989,602. That second suit also contains a counterclaim for unfair competition, similar in essence to the counterclaim in the first case.
The third case, equity No. 83/361, is founded on patent No. 1,964,381, granted to the American Blind Stitch Machine Company as assignee of one Dearborn on July 26, 1934. This patent, which is referred to hereinafter as the Dearborn automatic patent, was purchased as a result of a settlement of a controversy between the American Blind Stitch Machine Company and the Lewis Invisible Stitch Machine Company by an agreement dated the 10th day of September, 1936, which was followed by delivery of an assignment to the Lewis Company by the American Company dated September 9, 1936, which carried with it not only an assignment of the Dearborn automatic patent No. 1,964,381, but also all past claims for damages due to any infringement thereof. It is from this latter clause contained in the assignment that the plaintiff gets its locus standi to sue the defendant for any infringements prior to the date of the assignment, September 9, 1936.
II. The nature of blindstitching and skipstitching has been set forth with his accustomed felicity of phrase by Judge Learned Hand in the case of Buono v. Yankee Maid Dress Corporation, 2 Cir., 77 F.2d 274, at page 275. His description I hereby incorporate at this point by reference.
III. I will now endeavor to give in a brief way what I have gathered from the record of the history of the demand in the trade for what is known as blindstitching and skipstitching.
We were so fortunate as to have the president of the American Blind Stitch Company, Mr. Rivers, testify, and he is a man whose business experience in this trade goes back to the first part of the century and covers, at least for our present purposes, all of the changes therein.
Of course, it was always known that you could blindstitch any material by hand. The great problem in this machine age was to find out some kind of sewing machine that could make blind stitches, and Mr. Rivers states that Mr. Dearborn, who is the inventor for the American Company, was the originator of the blindstitching machine which was first applied to men's clothes, on which, of course, the seams would be thicker than on women's clothes. That was something like 35 to 38 years ago, even before Mr. Rivers had gone into the business.
The first machine which was made by Mr. Dearborn was for sewing the bottom seams of trousers, and by degrees the desire *708 arose for using blindstitching for thinner material, and as a result people began to use blindstitching machines or to experiment with blindstitching machines, which were intended for heavy work, for work of a more delicate and daintier quality, and began to use them sometimes for women's clothes. For many years, however, the use was principally in men's clothes, and then it began to be used for women's tailored skirts, jackets, and other types of women's clothes, which may fairly be described as suits rather than frocks.
Then by degrees a demand began to arise for the use of blindstitching in light fabrics for women's frocks, like silk dresses, cotton dresses, and so forth.
The pressure of the demand for this was felt, according to Mr. Rivers, about 6 or 8 years ago, or in the beginning of 1929.
The demand for skipstitching became strong, particularly for the bottoms of the skirts of women's frocks, about 4 or 5 years ago, say in 1932 to 1934.
The reason for this was that it was expensive to have skirts hemmed by hand, and the desire was to get a machine which could deal properly with such delicate fabric as silk, rayons, or thin cottons, and succeed in making an anchorstitch and then a skipstitch or an anchorstitch and two skipstitches, which would hold the material and, at the same time, would not show much on the outside of the hem.
Thus a machine-made silk dress would look, at least to the casual observer, much like the handwork of expensive dressmakers, and it was with this in mind, so far as I can make out from the evidence, that the various persons interested in this branch of the needle trade began to get interested in skipstitch mechanism.
There was also a demand for speed in operations, and machines of more refined adjustments were made, and these machines were used for women's wear.
It is against this matrix of commercial demand that I want to approach the consideration of these patents.
IV. Now, we have to focus our attention on the precise matters that are the subject matter of the patents, and I think perhaps I can, without attempting to describe the machines in any detail, say that the actual sewing of these seams is accomplished within what perhaps I might for convenience call the upper and lower jaws of the machines. The upper jaw is made up of a head which carries the needle and, usually, but not always, the feed mechanism, to feed the material through the machine, and a presser-foot.
The lower jaw, which engages with the upper jaw when the machine is operated, contains devices called platens to keep the material pressed up against the presser-foot, sometimes provisions for feeding the material, and always a node or ridge-former to raise the material to the needle. In a slot between the platens is, what I have called throughout the case, a saddle, up into which the ridge-former, which we have called a disc during the trial, operates to raise the material which runs between the saddle and the ridge-former over the platens and under the presser foot.
The needle is arcuate or scimiter-shaped and operates at right angles to the material which is being sewn, and, in most of the high speed machines at least, the needle makes a chain-stitch instead of a lockstitch, which involves the use of a bobbin.
It is obvious that when the actual sewing occurs it is necessary that the material sewn should be held tautly, and this is achieved by the proper timing and cooperation of all the elements that I have mentioned here, the needle, the presser-foot, the platens, and the ridge-former, and also the saddle, which is subject, usually, to the pressure of a spring pressing it down towards the material. The combination of all these devices when properly timed results in what appears to an inexperienced observer like myself extraordinary speed in the feeding of the material. The arcuate needle goes at a regular beat and bites deep into the material when the node-former or disc, as we have called it, is at its high point, and skips some of the material, if skipstitching is desired, when the node-former is at its low point, whether that be in contact with the material or not.
This somewhat sketchy description of a skipstitch sewing machine is made merely for the purpose of focusing attention on the fact that in these patents the manual disc patent No. 1,905,391 and the automatic disc patent No. 1,989,602 we are concerned with the type and motion of the ridge-former which rises through what I have called the saddle, rises and presses the material through what I have called the saddle.
V. The table patent of Mueller, No. 1,764,573, the single claim of which was embodied in the first two suits, was withdrawn *709 from consideration at the argument of the case by plaintiff's attorney in view of expressions which I had made as to my in-hospitality to it from the point of view of invention, and my belief that it was invalid as an invention over the prior art.
Such an informal method of withdrawing a contention like this could be passed without further notice if it were not for the fact that a patent was involved. Consequently, whilst I appreciate very much the attitude of plaintiff's lawyer in withdrawing it from consideration, and relieving me of at least that much of what I think would have been unnecessary effort, I cannot allow it to be withdrawn. I must hold and do hold the single claim of the table patent No. 1,764,573 invalid in order that there should be a definite disposal of it herein, and in order that it may not hang as a threat over the art. It must be definitely got out of the way.
VI. As is natural in a fast-growing art like this, there has been some litigation.
The United States Blind Stitch Machine Company, together with two brothers named Buono, brought suit against Schifter, the president of the defendant here, and there was a hearing on a preliminary injunction before me in March, 1934, which was inconclusive because before it was decided I became ill.
Then there was a case of Buono v. Yankee Maid Dress Corporation, D.C., 7 F.Supp. 793, decided by Judge Campbell in April, 1934. An appeal was taken from Judge Campbell's decision sustaining the Buono patent No. 1,926,644, and his decision was affirmed as to that patent, but reversed as to the Product patent he sustained for the skipstitch made by the Buono machine, 2 Cir., 77 F.2d 274.
Then in May, 1935, there was a second hearing before me on the case of United States Blind Stitch Machine Company v. Schifter on the preliminary injunction. I denied it on the ground that the defendant Schifter did not infringe the United States patent No. 1,926,644. This same case came on for final hearing before Judge Knox on February 4 to 13, 1936, and was decided by Judge Knox on December 12, 1936, who held as I had that there was not any infringement, but did not pass on the validity of the claim in issue, which was claim 6. I mention this litigation merely to show what has happened so far as I am aware from the point of view of litigation in this art.
There was also an inquest before Judge Byers in which the Lewis Invisible Stitch Machine Company sued a user, named Marlboro Fashions, of the defendant's first type of machine. That case was not defended, although there was an appearance for the defendant and an inquest taken which was the subject of consideration in connection with the unfair competition question with which I shall deal later.
VII. I hold that the manual disc patent No. 1,905,291 is valid but not infringed. In that patent claims 1, 3, 8, and 10, which read as follows, are the foundation of plaintiff's case:
"1. In a sewing machine, the combination with an oscillatory shaft, of a ridge forming element fixed to said shaft and having ridge forming surfaces of different radii arranged in tandem, and means for adjusting said ridge forming element about the longitudinal axis of the shaft to vary the effective height of said element."
"3. In a sewing machine, the combination with an oscillatory shaft, of a ridge forming element fixed to said shaft and having ridge forming concentric surfaces of different radii arranged in tandem, and means for adjusting said ridge forming element about the longitudinal axis of the shaft to vary the effective height of said element."
"8. In a sewing machine, the combination with an oscillatory shaft, of a ridge forming element fixed to said shaft and having ridge forming surfaces of different radii arranged in tandem, a stitch forming mechanism located about said element and including a reciprocatory needle having a fixed path of movement across the element and directly above said shaft, and means for adjusting said element about the longitudinal axis of the shaft to vary the effective distance between the element and the path of needle movement."
"10. In a sewing machine, the combination with an oscillatory shaft, of a ridge forming element fixed to said shaft and having ridge forming concentric surfaces of different radii arranged in tandem, the radius of the rear surface being less than the radius of the front surface, and means for adjusting said ridge forming element about the longitudinal axis of the shaft *710 to vary the effective height of said element."
I think that the question of invention in this patent is nice, and, if it were not for the presumption of validity that attaches to a patent, especially where the same main references to prior art have been before the Patent Office as are before the court, Stevens v. Carl Schmid, Inc., 2 Cir., 73 F.2d 54-56, Ensign Carburetor Company v. Zenith-Detroit Corporation, 2 Cir., 36 F. 2d 684-686, I should have greater difficulty than I even do now in holding the segmental two-step disc of the plaintiff as an advance in the art entitled to the status of invention. But having very carefully considered this matter from every point of view and finding that the defendant's main references thereon are Onderdonk patent No. 872,676 and Whitehall patent No. 1,287,157, which are claimed to anticipate the manual disc patent, I say that you cannot create an anticipation by building up a mosaic, but that to constitute an anticipation you have to have something that is integral in one patent. That is not found in either of these references.
As to the prior art, I think the manual disc patent was the first device with a single disc in which a machine could be used without changing the table height to get anchor stitches or blindstitches. This was achieved by the two diameters of the disc which were arranged, as the claim describes, in tandem on the same disc and which could be changed at will by hand.
Thus you could have a series of anchor stitches and then a series of stitches that did not go as far through as the anchor stitches, and then the whole work could be anchored by further anchor stitches merely by changing the adjustment on the machine.
Now the defendant to be sure took the segmental two-step disc and gave it the tribute of his imitation, and then differentially oscillated it automatically, but it seems to me it cannot be said that by what we have called its first device, in spite of its segmental two-step disc, the defendant was achieving the same result as the manual disc patent, in practically the same fashion, and, therefore, I think that it is not proper to hold that was an infringement.
VIII. Then we turn to the automatic disc patent No. 1,989,602.
The first suit is founded on claims 1, 19, 20, 21 and 22 thereof.
The second suit is founded only on claims 1 and 19.
I hold that, with the table patent now out of the way, all the claims on which the first and second suits are based are valid and infringed.
Therefore, the situation is that Mueller, who was the inventor of the manual disc patent, created a device differentially to oscillate a segmental disc, similar to that of his manual disc patent, so that at one stage of a revolution it occupied one segment of a circle and at another stage another segment of a circle, and in this way provided for skipstitching.
The great question which has troubled me in connection with this part of the case has been the true meaning and effect to attach to claims 1 and 19. I have given to that question a great deal of attention and have come to the conclusion that those claims are valid, and I think they read directly on the defendant's first type of disc. Indeed, I could almost say they confessedly do so, because the defendant discarded using that form of disc and started what has been called their "plunger," which really is another form of disc with arcuate motion. Now anything which has arcuate motion has to travel both horizontally and perpendicularly. This is illustrated by Figure 5 on Exhibit 28, which shows the path of a point on the defendant's second form of disc, and shows it very graphically.
It might be so arranged that the perpendicular element was greater or the horizontal element was greater. That is not material here. But you have to have a combination of these two motions for any particular point on anything that is involved in arcuate motion. Consequently it seems to me that claims 1 and 19 define that. The claims to which I have been referring are as follows:
"1. In a blind stitch sewing machine, an oscillatory ridge-forming disc, means for angularly oscillating said disc for a fixed amount, and means for varying the position of the angular range of movement of said disc during alternate oscillations thereof."
"19. In a blind stitch sewing machine, an oscillatory ridge-forming disc, means for angularly oscillating said disc, and means for varying the position of the angular range of movement of said disc during successive oscillations thereof."
"20. In a blind stitch sewing machine, an oscillatory ridge-forming disc having *711 high and low peripheral portions arranged in tandem, a reciprocatory needle, means for reciprocating the needle transversely of the disc, and means for oscillating the disc in timed relation to the reciprocations of the needle to thereby present said disc portions periodically to the needle to vary the effective depths of the needle penetrations."
"21. In a sewing machine, the combination with a main shaft, of an oscillatory shaft, a ridge-forming disc fixed thereto and having peripheral surfaces of different radii arranged in tandem, a needle reciprocating above the disc, and driving connections between said shafts for periodically presenting to the needle first one of said surfaces and then the other to thereby vary the effective depths of the needle penetrations."
"22. In a sewing machine, the combination with a main shaft, of an oscillatory shaft, a ridge-forming disc fixed thereto and having peripheral surfaces of different radii arranged in tandem, a needle reciprocating above the disc, and driving connections between said shafts for periodically presenting to the needle first one of said surfaces of the disc and then the other to thereby vary the effective depths of the needle penetrations, said driving connections including a reduction gear and an eccentric driven thereby."
I have been aware of all the criticism which Mr. Burkitt has made with regard to claims 1 and 19, and from the very first they somewhat bothered me, but I have come to the conclusion, on thinking the matter over with the greatest care, that those two claims are perfectly valid general claims covering differential oscillation of a disc.
Of course, I am quite aware that the word "disc" is a somewhat unusual word to use for referring to a segment of a circle, but any one can adopt his own nomenclature. Why the patentee adopted the name "disc" for his ridge-former, shown in the drawing as a segment of the circle, I cannot see, for I think some better descriptive word might have been used.
Now, as to the other claims, 20, 21, and 22, they are much more specific claims, and mention different diameters of the disc, and Mr. Burkitt's criticism of those claims is that they do not show and do not imply a differential oscillation of the disc; but I think that such an oscillation is fairly implied from the fact that it is stated that the needle, which we all know is a fixed point, is first presented to one of the surfaces of the disc and then to the other in order to vary the depth of the needle penetration. The three claims, 20, 21, and 22, in effect march together and are held valid.
As to the defendant's references; Its principal reference is to Mueller's own patents 1,588,132 and 1,715,562, and also to Onderdonk 872,676. In this case again it seems to me that, so far as predicating anticipation is concerned, defendant is trying to do it by patchwork or mosaic, and, indeed, the most important of these references, it seems to me, were passed on by the Patent Office and, therefore, what I said before in connection with the manual disc patent with regard to presumptions would cover this case also. But it seems to me that the differential oscillation of a two-step disc or, indeed, of a disc without two steps, the first of which is permissible under the claims 20, 21, and 22, and the second of which is permissible under the claims 1 and 19, is a real invention.
It seems to me that there really cannot be any question as to infringement either by the defendant's first device, which we have called his earlier disc, or the defendant's second device, which we have called his later disc. In every case there was arcuate motion and differential oscillation.
IX. Now, we turn to what we have called during the trial the Dearborn automatic patent 1,964,381. That was issued on July 26, 1934, and is the basis of the third suit, equity 83/361.
The plaintiff, as above observed, gets a locus standi to maintain the action in respect of any damages prior to its ownership of the patent, which was assigned to it as above described, by the specific terms of the assignment.
There is not any counterclaim in this third suit.
In effect, this patent is the patent for the linkage of the Dearborn automatic machine, which is a very much simpler mechanical device, with what we have referred to during the trial as the floating pivot, shown in the patent in Figure 4 as No. 68.
I cannot set myself up as sufficiently expert in mechanics to say that there never has been such a form of linkage arranged before. It is quite true, as the defendant contends, that that type of linkage was, as you might say, adumbrated in Mueller's patent No. 1,588,132, and which we have referred to occasionally as the cradle patent *712 during the trial. The defendant also cites Mueller's patent No. 1,715,562. The floating pivot in Dearborn's case operating with a cam was of the essence of the invention. It was a very much more plastic mechanical device than the eccentric within an eccentric that Mueller had been using in patent No. 1,989,602, although that was not a part of that patent but merely was the means referred to in the claims of achieving the motions of the ridge-former desired. I do not think that defendant's references are sufficient to constitute an anticipation of Dearborn, because neither of them seem to me to be sufficiently like the Dearborn device.
So far as prior art is concerned: To an expert mechanic I suppose it is very difficult to find any mechanical motion that is not known to him, but it is the combination of the mechanical motions that he achieved by his patent No. 1,964,381 that gave Dearborn the status of an inventor. Consequently, I hold that claim 3 of the Dearborn automatic patent is valid.
It reads as follows: "3. In a sewing machine, the combination with a machine frame, a presser foot upon said frame, a driving shaft, suitable stitch forming mechanism, and a spring sustained work support movably mounted upon said frame in operative relation with said presser foot, of an oscillatory shaft mounted on said work support, a ridge forming member carrier by said oscillatory shaft in position to press a rib of work against said presser foot, a rock-arm operatively connected with said oscillatory shaft, means operating said rock-arm from said driving shaft, a floating pivot or journal upon which said rock-arm is mounted, and means operated by said driving shaft for automatically shifting said floating pivot or journal to vary the stitching."
Of course, there is no doubt about the infringement whatever in my opinion because the defendant has used practically exactly the same linkage that Dearborn used to actuate both its earlier and its later disc.
X. Now I turn to the question of unfair competition. I say without any hesitation whatever that I think that the plaintiff was indiscriminate in its broadcasting of its claims to a patent monopoly, and also that it covered territory in which it had no right to such monopoly. By that I refer, of course, to Canada.
Roughly speaking, the notices sent to the trade, whether by the lawyers for the plaintiff or by the plaintiff itself, divide themselves into two epochs, the second of which I think can fairly be begun by the letter which was sent to customers under date of February 18, 1936, enclosing an alleged clipping from the Daily News Record and the Women's Wear Daily.
Mr. Stein, the plaintiff's president, and Mr. Moulton, its general manager, have confessed quite frankly that this was an error, and, of course, we all know by comparison that the alleged article contained in that notice and printed so that it appeared to be an extract from a paper was not actually an extract from either of the papers mentioned. Just how much difference it would have made, if, instead of referring to this as an extract from a paper, it had been merely sent out as a notice, I am a little in doubt. I think, however, that my first impression with regard to the kind of notice that ought to be sent if any attempt is made to broadcast to a trade by a patentee is correct, namely, that the notice should be as specific in its detail as to the number of the patent and the article which it is claimed infringes that patent as a notice on which to found an accounting, e. g., Hazeltine Corporation v. Radio Corporation, D.C., 20 F.Supp. 668, 673.
This is a strict rule, but is what, it seems to me, would be a very fair rule because then you would have a specific claim with which no one could quarrel, because, if you tell a man what is the monopoly that you claim and in what respect it is claimed that he infringes or may infringe that monopoly, I do not see how any unfair competition could be possibly claimed on the basis of the content of the notice.
I do not think I need to go through all these letters because of the disposition I am going to make of this aspect of the situation. Many of them are specific enough to answer my requirement, notably many of those that were sent out by Messrs. Stockbridge & Borst, plaintiff's attorneys.
I think, however, that the Exhibit G-1, which contained the alleged extracts from the Daily News Record and the Women's Wear Daily, was the kind of thing that would be essentially liable to mislead and confuse people who were in this trade, and as I said during the argument it seems to me that it is a very absurd position for a patentee to take, to begin if I *713 may so express it to flap his wings on a decision in an interlocutory matter. Certainly, if he tries to describe that interlocutory decision and uses anything except a full statement of the opinion of the court, he does it at his peril. It seems to me that this extract here, this alleged quotation from the newspaper Exhibit G-1 was the core, so to speak, around which the defendants have wound their claim for unfair competition.
It is perfectly obvious to me that it is quite unfair for a patentee in the United States, who hasn't any Canadian patent, to send circulars to Canadian dealers on his patented article and in this way try to damage because that is the only object that can be served by it the defendant's market in another country where the patentee has no monopoly. So here, the Lewis Company has geographically exceeded its monopoly by circularizing in Canada, and it has given, I should think it would be fair to say, a false impression as to the operation of the court in its one interlocutory decision on a question concerned with that monopoly in the United States.
Also, it is to be remembered that the inter-office correspondence between Mr. Stein and his secretary in Chicago and his St. Louis office indicated that the plaintiff was on its toes to get out this notice, Exhibit G-1, as soon as possible and circularize it, I believe the testimony was, among about 12,000 people, of whom a measurable number it does not appear from the testimony how many were Canadians.
Now there has been in this cause a cavalcade of witnesses from the needle trade who came in and testified here before me as to the results of that campaign. I think that there was some damage done by it because it must be remembered that the Columbia Blindstitch Company makes not only skipstitch machines and blindstitch machines, but other machines which have been described during the trial, and the effect of a generalized notice given throughout the trade, which I think, having observed the witnesses, do not represent perhaps the highest type of intelligence, would be very apt to cause damage in respect of machines of the Columbia Company which were not, and were not claimed to be, covered by the Lewis patents. The result undoubtedly was, as is shown by the testimony that has been before me, that there were some losses of sales by Columbia.
As I said before, however, I think that those losses have probably been somewhat exaggerated. I think there has been considerable feeling of exasperation between the two companies, and the defendant has perhaps been inclined to regard the plaintiff too much as the devil behind all the troubles it may have encountered in making sales.
I, therefore, hold that there was unfair competition by the plaintiff with the defendant.
XI. Then I am faced with a curious and interesting question which I am going to deal with, I think, in a novel way.
On the one side, whether rightly or wrongly, I have held that two of these patents were valid and infringed. That means that ordinarily speaking I should be granting to the plaintiff an accounting for damages and profits. I am not inclined to take such high ground as the Circuit Court of Appeals took in the case of Art Metal Works v. Abraham & Straus, Inc., 2 Cir., 70 F.2d 641, 642, and say that the situation here is so fraught with evil on the plaintiff's part as to make it necessary for me to refuse to enforce the monopoly which has been granted to them by the executive department of the government when their patents, which I have found to be valid and infringed, were allowed.
But, on the other hand, when a judge sits as I am doing now and tries to balance the equities and see how he should make a decree because federal equity is a very plastic jurisdiction I am glad to say how he can fix a decree so that it will do substantial justice between the parties remedially, he will come to the conclusion, as I have done, that it would be practically impossible for the defendant to prove damages on their unfair competition claim. It would be extremely difficult to do it because the chain of causation is difficult to make out, and the type of witness available would not be good; after all, you can only work with what you have to work with, and I think the Columbia Company would never be able to prove the damages I am sure they have incurred.
This, therefore, is what I am going to do in this case, for I think it is about the fairest thing to do. Realizing, on the one hand, that the defendant would have great difficulty in establishing its damages for unfair competition, and realizing at the same time, on the other hand, that the plaintiff has its monopoly, I look at the whole situation. *714 Now, what I am going to do is to refuse any accounting and damages to the plaintiff because of its acts of unfair competition, but my decision is that the plaintiff may have the usual injunction in all these suits against all further infringement in the future of the claims that I have held valid and infringed.
The defendant may, in the first and second suits wherein the counterclaims were lodged, have an injunction against any future unfair competition by the plaintiff arising out of notices not specifically worded and notices sent into countries where the plaintiff has not any patent monopoly, and against the prosecution of any causes elsewhere pending or to be brought against users of, or dealers in, Columbia infringing machines for an accounting.
It is my idea in deciding the case in the way I have done to have the decrees look entirely in futuro, and, so to speak, to preclude any past damages. I think that the decrees in the first two suits, therefore, may also include an injunction against prosecution by the Lewis Company of any users, dealers, or sellers or other persons in connection with the Columbia machines which have been in litigation here beyond the securing of an injunction.
In other words, I will enjoin the Lewis Company from going further with those suits than an injunction. If it gets an injunction, well and good, because that is what I am giving it here, but it must not get an accounting against any of these users, sellers, and dealers of Columbia machines.
Thus, I will not allow any accounting for damages or profits here or elsewhere either to the plaintiff or the defendant.
By this disposition of these causes the profits, if any, which the defendant may have made out of infringement, or any damage which it may have done to the plaintiff, will be deemed to be balanced off by the damage which the plaintiff has caused the defendant by the nature of its unfair competition, and the respective money claims of the parties will both be allowed to be washed off the slate.
The decree must also provide that the first patent mentioned in the complaints, the table patent No. 1,764,573, is held invalid, so that it will be out of the way entirely and will not be hanging as a threat over the needle trade, and the decree must also provide that there will not be any costs to either party in any of these suits pending before me.
XII. This opinion shall stand as the findings of fact and conclusions of law required under Equity Rule 70½, title 28 U. S.C.A. following section 723, and on order so providing must be embodied in the decrees which are entered in these suits, e. g., Stelos Company v. Hosiery Motor-Mend Corporation, D.C., 60 F.2d 1009, 1013; Id., 2 Cir., 72 F.2d 405; Id., 295 U.S. 237, 55 S. Ct. 746, 79 L.Ed. 1414.
The decree will be settled on the usual notice.
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 434 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
MIGUEL ANGEL PAGAN, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 27th day of October, 2016, the Petition for Allowance of Appeal
is DENIED.
| {
"pile_set_name": "FreeLaw"
} |
938 F.2d 184
U.S.v.Crandall (Barton Ray)
NO. 90-1594
United States Court of Appeals,Eighth Circuit.
FEB 06, 1991
Appeal From: N.D.Iowa
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
4 F.3d 970
39 Cont.Cas.Fed. (CCH) 76,561
BIRCH & DAVIS INTERNATIONAL, INC., Appellant,v.Warren M. CHRISTOPHER, Secretary of State, Appellee.
No. 92-1384.
United States Court of Appeals,Federal Circuit.
Sept. 13, 1993.
Shelton H. Skolnick, of Derwood, MD, argued for appellant. With him on the brief was Judy D. Leishman, of Glenelg, MD, of counsel.
Christopher R. Yukins, Atty., Commercial Litigation Branch, Dept. of Justice, of Washington, DC, argued for appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Terrence S. Hartman, Asst. Director. Of counsel was James M. Kinsella. Also on the brief was Jeffrey Marburg-Goodman, U.S. Agency for Intern. Development, Washington, DC, of counsel.
Before PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and RADER, Circuit Judge.
PLAGER, Circuit Judge.
1
Appellant, Birch & Davis International, Inc. (Birch), protested a procurement conducted by the Agency for International Development (agency). Although four bids, including two from Birch, were technically acceptable, the contracting officer excluded all but one bid from the initial competitive range. Both Birch bids were excluded.
2
When Birch challenged this action before the General Services Administration Board of Contract Appeals (Board), the Board held the contracting officer's decision to be reasonable and within her discretion. Birch appealed the Board's decision here. We conclude that the Competition in Contracting Act (CICA) and the Federal Acquisition Regulations (FAR) implementing it do not allow a contracting officer to eliminate competitors from the initial competitive range if there is any reasonable chance that they will be selected. The decision of the Board is vacated and the case remanded for proceedings consistent with this opinion.
BACKGROUND AND PROCEDURAL HISTORY
3
On April 1, 1991 the Agency for International Development issued a Request for Proposals (RFP) for the design and implementation of a computerized management information system for the Egyptian Health Insurance Organization. The proposals were to be evaluated for technical merit factors, worth a combined total of 90 points, and a cost factor, worth 10 points.
4
Birch submitted three proposals, while four other companies submitted one each. A technical evaluation panel scored the seven bids and deemed four to be technically acceptable. Two of these four were from Birch, leaving three competitors in the bidding. Although Birch's technical scores were the lowest of the four bids--10.8 and 12 points behind the highest score--all four of the technically acceptable proposals had numerous deficiencies. Even the highest-scoring bid, from Maximus, scored only 67.5 out of 90 possible points. After the contracting officer factored in the cost evaluations, Maximus' lead over Birch increased to 15.01 and 15.94 points. Maximus' total score was 77.05 out of 100 possible points.
5
On December 10, 1991 the contracting officer informed Birch and another bidder that their proposals had been excluded from the initial competitive range. See FAR, 48 C.F.R. Sec. 15.609(a) (1991). This action left Maximus as the sole offeror in range. Because a contracting officer need not conduct discussions with offerors outside the competitive range, see id. Sec. 15.610(b), the contracting officer held discussions with Maximus only.
6
On December 20, 1991 Birch filed a protest with the Board of Contract Appeals (Board), contending that the contracting officer had improperly excluded Birch's bids from the competitive range. The protest also alleged generally that the technical and cost evaluations were fatally flawed.
7
In its decision on February 27, 1992, the Board found no error in the calculation of technical and cost scores. Birch & Davis Int'l, Inc. v. Agency for Int'l Dev., 92-2 B.C.A. (CCH) p 24,881 at 124,097-98, 1992 WL 45953 (GSBCA 1992). The Board acknowledged the broad discretion of contracting officers to determine competitive range, but gave "close scrutiny" to the contracting officer's decision in this case because it restricted the competitive range to a single proposal. Using this close scrutiny, the Board concluded that the contracting officer's action was reasonable. Id. at 124,098. The Board stated that:
8
[T]he record ... reflects a thorough and conscientious effort on the part of the TEP [technical evaluation panel] members. The contracting officer has obviously relied heavily upon it. Protester [Birch] has provided us with no evidence which would cause us to doubt the accuracy of the TEP findings or the contracting officer's reasonable reliance upon it.
9
We recognize, as did the contracting officer herself, that many of the deficiencies found in protester's three proposals are obviously of an informational nature and might have been readily remedied through discussions with protester. The same, however, can be said of the deficiencies noted in the other proposals as well--none of which were particularly close to obtaining the highest possible overall score in the initial evaluation. Comments contained in the TEP report ... strongly suggest that, with discussions, the scores of all offerors might significantly improve.... Since the potential for improvement of scores appears to have existed for all offers, the point spread apparent in the initial evaluation was of particular importance and apparently was a significant factor in the contracting officer's decision not to include protester's offers in the competitive range.
10
....
11
We see no reason to take issue with the contracting officer's determination in this case. The record shows that this decision was not made hastily or without consultation.
12
....
13
Whether we agree or disagree with her final decision is immaterial. The test is whether it was a reasonable decision made within the limits of her assigned discretion.
14
Id. at 124,098-99.
15
On March 4, 1992 Birch moved for reconsideration of the Board's decision, on the ground that it failed to address an issue raised in the protest. Birch had argued that the agency, by not seeking full and open competition, violated the Competition in Contracting Act. In its denial of reconsideration on May 6, 1992, the Board rejected Birch's argument because it was based on the erroneous assumption that the contracting officer's decision was improper. Birch & Davis Int'l, Inc. v. Agency for Int'l Dev., 92-3 B.C.A. (CCH) p 25,082 at 125,020, 1992 WL 94529 (GSBCA 1992). The Board in its earlier decision had already held that the contracting officer's decision was proper.
16
On March 5, 1992 Birch also moved for consideration by the full Board, claiming that the decision in this case conflicted with prior Board decisions. In its denial on May 6, 1992, 1992 WL 94524, the Board found no conflict; its conclusion that the contracting officer's decision was reasonable turned on specific facts unique to this case. Id. at 125,021. Birch appealed the Board's decision to this court.
17
Birch argues that the contracting officer's exclusion of Birch from the competitive range violated FAR, 48 C.F.R. Sec. 15.609(a), which requires that the competitive range "include all proposals that have a reasonable chance of being selected for award. When there is doubt as to whether a proposal is in the competitive range, the proposal should be included." Birch contends that the score difference between Birch and Maximus was not insurmountable, especially since Maximus' bid scored far below the maximum possible score of 100. Birch's bids were technically acceptable, and contained mainly informational deficiencies that could easily be corrected after discussions. Thus, says Birch, its proposals had "a reasonable chance of being selected."
18
Birch also argues that the contracting officer's action violated the full and open competition requirement of CICA, 41 U.S.C. Sec. 253 (1988), because it resulted in a competitive range of only one proposal. The Comptroller General has opined that when the exclusion of an informationally deficient proposal would result in a competitive range of one, the agency should retain the offer in range unless it is so deficient that further discussions with the offeror would be meaningless. Falcon Sys., Inc., 84-1 Comp.Gen.Dec. p 658, at 8 (June 22, 1984).
19
In response, appellee Secretary of State (government) argues that substantial evidence supports the Board's conclusion that the contracting officer acted reasonably and within her discretion. A contracting officer has broad discretion to determine the initial competitive range; in this case, the contracting officer simply determined that Birch's proposals scored so far behind Maximus' that they had no reasonable chance of being selected. Even if the competitive range consists of one proposal, says the government, the contracting officer's action should not be disturbed unless unreasonable. Although close scrutiny is unnecessary, in this case the Board applied close scrutiny yet still decided that the contracting officer acted reasonably.
20
The government also argues that eliminating bidders before holding discussions with them is proper because an agency may award a contract without conducting any negotiations at all. See 41 U.S.C. Sec. 253b(d)(1)(B) (1988). According to the government, requiring an agency to retain multiple offerers in the competitive range purely for discussion purposes would result in costly iterations of discussions, offers, and competitive range redeterminations.
DISCUSSION
21
A contracting officer has broad discretion in determining competitive range, and such decisions are not disturbed unless clearly unreasonable. RMTC Sys., Inc., 92-1 B.C.A. (CCH) p 24,619 at 122,800, 1991 WL 256083 (GSBCA 1991); Integrated Sys. Group, Inc., 91-2 B.C.A. (CCH) p 23,961 at 119,956, 1991 WL 71525 (GSBCA 1991); Phoenix Assoc., Inc., 88-1 B.C.A. (CCH) p 20,455 at 103,451 (GSBCA 1988). However, the FAR does not allow a contracting officer to eliminate competitors from the initial competitive range if there is any "reasonable chance" that they will be selected. FAR Sec. 15.609(a) provides:
22
The contracting officer shall determine which proposals are in the competitive range for the purpose of conducting written or oral discussion.... The competitive range ... shall include all proposals that have a reasonable chance of being selected for award. When there is doubt as to whether a proposal is in the competitive range, the proposal should be included.
23
See Blue Chip Computers Co., 92-1 B.C.A. (CCH) p 24,498 at 122,686, 1991 WL 192292 (GSBCA 1991) (protester's proposal was technically acceptable and was only deficient with regard to cost itemization; here Air Force violated FAR Sec. 15.609 by excluding the proposal from the competitive range when it was reasonably susceptible of being made acceptable).
24
There is thus a tension between the necessarily broad discretion of an agency, acting through the contracting officer, to determine what bids are realistically competitive, and the mandate of the FAR that, when there is doubt, the questionable bid should be included. The question posed by the FAR, consistent with the full and open competition requirement of CICA,1 is not whether a reasonable contracting officer might under the circumstances prefer a competitive range of one, but whether the excluded competitors have a reasonable chance of being selected after opportunity for improvement. See also CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1571 (Fed.Cir.1983).
25
To promote the legislative and regulatory policy favoring competition while allowing contracting officers the full range of their discretion, the Board of Contract Appeals and the Comptroller General have given "close scrutiny" to contracting officer evaluations that result in a competitive range of one. Rockwell Int'l Corp. v. United States, 4 Cl.Ct. 1, 5 (1983); Aerospace Design, 92-2 Comp.Gen.Dec. p 11, p. 11 (July 9, 1992); Apt Corp., 88-1 B.C.A. (CCH) p 20,411 at 103,249 (GSBCA 1987).
26
We agree with this approach. If the contracting officer has determined an initial competitive range of one, there must be a clear showing that the excluded bids have "no reasonable chance" of being selected. FAR Sec. 15.609; c.f. American Sys. Corp., 92-2 Comp.Gen.Dec. p 158 (Sept. 8, 1992) (technically acceptable proposal could be excluded from competitive range, leaving one offeror in range, because it had no reasonable chance of being selected); Apt Corp., 88-1 B.C.A. (CCH) at 103,249.
27
When there is doubt as to whether a proposal belongs in the competitive range, FAR Sec. 15.609 requires that it be included. "It is well established that a proposal must generally be considered to be within the competitive range unless it is so technically inferior or out of line as to price, as to render discussions meaningless." M.W. Kellogg Co./Siciliana Appalti Costruzioni, S.p.A. v. United States, 10 Cl.Ct. 17, 23 (1986); Falcon Sys., Inc., 84-1 Comp.Gen.Dec. p 658, p. 8; see also Denro, Inc. v. Department of Transp., 93-1 B.C.A. (CCH) p 25,315 at 126,128 1992 WL 182226 (GSBCA 1992).
28
Here, the Board stated that it applied "close scrutiny." However, the record does not provide us with an adequate basis upon which to determine whether the Board correctly judged that the contracting officer acted within her discretion. The Board cited her reasonable reliance on the technical evaluations, and the fact that she made her decision without haste and after consultation. Thus, its approval of the contracting officer's decision appears to be based merely on the officer's decisional process. The Board made no finding regarding Birch's reasonable chances of being selected for award.
29
In fact, the Board's findings on that subject might suggest the opposite. The Board found that many of Birch's deficiencies were informational and might be readily corrected. The Board also acknowledged that none of the proposals were close to obtaining the highest possible total score. The Board stated that the initial score difference between Birch's and Maximus' bids was "of particular importance," but never explicitly concluded that Birch's proposal was so deficient that Birch could not overcome the score difference after discussions.
30
We recognize that under 41 U.S.C. Sec. 253b(d)(1)(B) the government may award a contract on the basis of original submissions, without any negotiations. However, that is different from the situation in which the government makes an award on the basis of original bids when the awardee's proposal has sufficient problems that extensive discussions are necessary to remedy them--discussions which, if conducted with the other competitors, might improve their proposals also to the point where they would have a reasonable chance of being selected.
31
On the record before us there is an absence of substantial evidence to support the conclusion that Birch had no "reasonable chance" of success. We thus are unable to affirm the Board.
CONCLUSION
32
The decision of the Board is vacated. The matter is remanded to the Board for such proceedings as may be necessary consistent with this opinion.Costs
33
Costs awarded to Birch.
34
VACATED and REMANDED.
1
The particular provision at issue states that "an executive agency in conducting a procurement for property or services--(A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this subchapter and the modifications to regulations." 41 U.S.C. Sec. 253(a)(1) (1988). There are a few exceptions to this general requirement of competition, but these are limited to specific, well-defined situations. See id. Sec. 253(c). "The Competition Act thus was designed to obtain 'full and open competition' by providing that (1) contractors were given adequate opportunities to bid, and (2) the government received sufficient bids to insure that it obtained the lowest possible price." United States v. Thorson Co., 806 F.2d 1061, 1064 (Fed.Cir.1986); see House Rep. No. 1157, 98th Cong., 2d Sess. 17 (1984)
| {
"pile_set_name": "FreeLaw"
} |
People v Sutton (2017 NY Slip Op 04475)
People v Sutton
2017 NY Slip Op 04475
Decided on June 7, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 7, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SANDRA L. SGROI
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
2014-11712
(Ind. No. 2636/12)
[*1]The People of the State of New York, respondent,
vAaron D. Sutton, appellant.
Lynn W. L. Fahey, New York, NY (Erin Tomlinson of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and Mariana Zelig of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered December 3, 2014, convicting him of burglary in the second degree, attempted burglary in the second degree, and criminal facilitation in the fourth degree, upon a jury verdict, and sentencing him to consecutive determinate terms of imprisonment of 10 years plus 5 years of postrelease supervision on the conviction of burglary in the second degree and 5 years plus 5 years of postrelease supervision on the conviction of attempted burglary in the second degree, and a definite term of imprisonment of 1 year on the conviction of criminal facilitation in the fourth degree, to run concurrently with the consecutively imposed sentences.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that all of the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant was convicted after a jury trial of burglary in the second degree, attempted burglary in the second degree, and criminal facilitation in the fourth degree, arising out of two separate incidents, one on August 24, 2012, and the other on September 28, 2012. The People presented testimony that during the August incident, the defendant knocked on the front and back doors of a single-family home while a teenage complainant was home alone. The complainant testified that when there was no answer, the defendant pried open the back door and entered the home, but left without taking anything. Surveillance video from a neighbor's house documented the defendant's presence at the scene.
During the September incident, a codefendant was seen approaching the back of another single-family house and shaking the bars covering a window of the house while holding a cell phone to his ear. He did not enter the house. The defendant was observed in front of the house using a cell phone while the codefendant was at the back of the house. When the codefendant came to the front of the house, he was seen making a gesture toward the defendant, and they left the premises walking in the same direction. After being spotted together a few blocks away by police responding to the scene, both the defendant and the codefendant fled from the police in separate directions before they were ultimately apprehended.
The defendant's contention, raised in his main brief and his pro se supplemental brief, that the convictions of attempted burglary in the second degree and criminal facilitation in the fourth degree were not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt and that he acted with the mental culpability required for attempted burglary in the second degree when he intentionally aided the codefendant (see Penal Law §§ 20.00, 110.00, 140.25[2]; People v Amico, 78 AD3d 1190, 1190; People v Roldan, 211 AD2d 366, 370, affd 88 NY2d 826). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644).
Contrary to the defendant's contention, raised in his main brief and his pro se supplemental brief, the consolidation of the burglary and attempted burglary charges for trial was proper under CPL 200.20(2)(b). Evidence from the burglary, which occurred under similar circumstances to the attempted burglary, could be admissible to demonstrate the defendant's intent and to rebut the defendant's argument that his presence at the scene of the attempted burglary was "entirely innocent" (see CPL 200.20[2][b]; People v Moore, 50 AD3d 926, 927). The charges were also joinable because they were defined by the same or similar statutory provisions and, consequently, were the same or similar in law (see CPL 200.20[2][c]; People v McCrae, 69 AD3d 759, 760). The proof of the crimes was presented separately and uncomplicated, enabling the jury to segregate the evidence.
The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during jury selection, his opening statement, and summation is partially unpreserved for appellate review since the defendant failed to object to many of the remarks he now challenges (see CPL 470.05[2]; People v Flanagan, 132 AD3d 693, 694, affd 28 NY3d 644). In any event, most of the challenged remarks were fair comment on the evidence and fair response to the arguments made by defense counsel in summation (see People v Galloway, 54 NY2d 396, 399; People v Nanand, 137 AD3d 945, 947-948; People v Willis, 122 AD3d 950, 950). To the extent that several of the prosecutor's remarks made during summation were improper, those remarks did not deprive the defendant of a fair trial, and any other error in this regard was harmless (see People v Nanand, 137 AD3d at 947-948; People v Roscher, 114 AD3d 812, 813; People v Walston, 196 AD2d 903, 904).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit (see People v Taylor, 1 NY3d 174, 176; People v Williams, 123 AD3d 1152, 1154, affd 29 NY3d 84; People v Brooks, 89 AD3d 746, 746). The record reveals that defense counsel provided meaningful representation (see People v Taylor, 1 NY3d at 176; People v Benevento, 91 NY2d 708, 712-714; People v Williams, 123 AD3d at 1154).
The defendant's contention that the Supreme Court improperly denied defense counsel's request for a circumstantial evidence charge is without merit, since the case against him consisted of both direct and circumstantial evidence (see People v Daddona, 81 NY2d 990, 992; People v Quinn, 131 AD3d 710, 711; People v Joseph, 114 AD3d 878, 879).
The defendant failed to preserve for appellate review his contention that he was deprived of a fair trial by an improper remark made by the Supreme Court to the prospective jurors during voir dire (see CPL 470.05[2]; People v Mason, 132 AD3d 777, 779; People v Cunningham, 119 AD3d 601, 601). Contrary to the defendant's contention, the court's alleged misconduct did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v Brown, 7 NY3d 880, 881; People v Mason, 132 AD3d at 779; People v Cunningham, 119 AD3d at 601-602). In any event, the court's remark to the prospective jurors, while inappropriate, does not [*2]warrant reversal (see People v Mason, 132 AD3d at 779; People v Bailey, 66 AD3d 491, 491).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions raised in his pro se supplemental brief are unpreserved for appellate review and, in any event, without merit.
HALL, J.P., SGROI, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 506 EAL 2015
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
AARON BRADLEY, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 30th day of December, 2015, the Petition for Allowance of
Appeal is DENIED.
Mr. Justice Eakin did not participate in the decision of this matter.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7047
ROBERT HOWARD SYPOLT,
Plaintiff - Appellant,
versus
PAUL KIRBY, Commissioner of Corrections;
HOWARD PAINTER, Warden, Mount Olive Correc-
tional Complex; JOHN & JANE DOE, unknown de-
fendants at this time,
Defendants - Appellees.
Appeal from the United States District Court for the Southern Dis-
trict of West Virginia, at Beckley. Charles H. Haden II, Chief
District Judge. (CA-99-552-5)
Submitted: October 21, 1999 Decided: October 27, 1999
Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior
Circuit Judge
Affirmed by unpublished per curiam opinion.
Robert Howard Sypolt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court’s order denying relief on
his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint. We have re-
viewed the record and the district court’s opinion accepting the
magistrate judge’s recommendation and find no reversible error.
Accordingly, we affirm on the reasoning of the district court. See
Sypolt v. Kirby, No. CA-99-552-5 (S.D.W. Va. July 22, 1999). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2015 Decided January 21, 2016
No. 14-5230
JEFFERSON MORLEY,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-02545)
James H. Lesar argued the cause and filed the briefs for
appellant.
Benton Peterson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Vincent H.
Cohen, Jr., Acting U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.
Before: SRINIVASAN, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
2
WILLIAMS, Senior Circuit Judge: Jefferson Morley
appeals for the second time from the district court’s denial of
his request for attorney’s fees and costs under the Freedom of
Information Act (“FOIA”). Morley argues that he is entitled
to a fee award under the familiar four-factor standard that
looks to “(1) the public benefit derived from the case; (2) the
commercial benefit to the plaintiff; (3) the nature of the
plaintiff’s interest in the records; and (4) the reasonableness of
the agency’s withholding of the requested documents.” Davy
v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008) (citations
omitted). Because the district court improperly analyzed the
public-benefit factor by assessing the public value of the
information received rather than “the potential public value of
the information sought,” id. (citations omitted), we must
vacate and remand again.
* * *
Morley is a journalist and news editor who has written
about the assassination of President John F. Kennedy. In
2003 he submitted a FOIA request to the Central Intelligence
Agency for all records related to CIA officer George E.
Joannides. Morley believed that information on Joannides
could shed new light on President Kennedy’s assassination
because Joannides had served as the CIA case officer for
Directorio Revolucionario Estudantil (“DRE”), one of the
Cuba-focused organizations with which Lee Harvey Oswald
was in contact in the months before the assassination.
Receiving only a communication from the CIA that records on
President Kennedy’s assassination had been sent to the
National Archives and Records Administration, Morley filed
suit. The ensuing litigation spanned over a decade and led to
the production of several hundred documents, a subset of
which are in fact publicly available in the Archives. Morley
contends that some of the documents turned over—a couple of
travel records and a photograph and citation relating to a
3
career medal once received by Joannides—shed some light on
President Kennedy’s assassination, but the value of these
documents is at best unclear.
In 2010 Morley sought attorney’s fees as a substantially
prevailing party. See 5 U.S.C. § 552(a)(4)(E)(i). The district
court denied the fee request. Morley v. CIA, 828 F. Supp. 2d
257, 265-66 (D.D.C. 2011). While acknowledging that “the
Kennedy assassination is surely a matter of public interest,”
id. at 262 (citation omitted), the district court concluded that
the public-benefit factor weighed strongly against a fee award
because the actual documents produced by the CIA provided
little if any public benefit, see id. at 262-64. After analyzing
the remaining three factors, the district court concluded that
Morley was not entitled to fees. Id. at 264-66.
This court vacated and remanded because the district
court had failed to consider the analysis of the public-benefit
factor in Davy, a decision that also concerned a FOIA request
for documents related to President Kennedy’s assassination.
Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013).
On remand, the district court again denied fees,
explaining that Davy “d[id] not alter [its] original conclusion
that ‘this litigation has yielded little, if any, public benefit—
certainly an insufficient amount to support an award of
attorney’s fees.’” Morley v. CIA, 59 F. Supp. 3d 151, 155
(D.D.C. 2014) (emphasis in original) (quoting Morley, 828 F.
Supp. 2d at 262). While noting the Davy court’s conclusion
that the requested information served a public benefit because
of its alleged nexus to the Kennedy assassination, the district
court rejected the idea that Davy had “create[d] a category of
records that automatically satisfy the [public-benefit] factor
based on a plaintiff’s claims of a relationship to [President
Kennedy’s] assassination.” Id. (As developed below, we
agree with the point that a plaintiff’s “claims” of a
4
relationship to the assassination aren’t enough to establish a
public benefit.) Analyzing the particular documents that
Morley received, the court concluded that “this litigation has
benefited the public only slightly, if at all.” Id. at 158. The
released documents either were previously publicly available,
id. at 156, or “shed very little, if any, light on Joannides’s
involvement in the events surrounding the Kennedy
assassination,” id. at 158.
* * *
The district court erred in concluding that the merits case
had not yielded a public benefit. We agree that the released
documents appear to reveal little, if anything, about President
Kennedy’s assassination. Morley contends that the released
travel records indicate that Joannides may have been in New
Orleans at the time that Warren Commission investigators
were interviewing DRE members about their contacts with
Oswald, and that the career medal reflects the CIA’s approval
of Joannides’s conduct as its case officer for the DRE and as
liaison between the CIA and the House Select Committee on
Assassinations. The plausibility and value of these inferences
are at best questionable, but are ultimately of little relevance
as Davy required the court to assess “the potential public
value of the information sought,” Davy, 550 F.3d at 1159
(citations omitted), not the public value of the information
received. The purpose of the fee provision is “to remove the
incentive for administrative resistance to disclosure requests
based not on the merits of exemption claims, but on the
knowledge that many FOIA plaintiffs do not have the
financial resources or economic incentives to pursue their
requests through expensive litigation.” Id. at 1158 (quoting
Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711
(D.C. Cir. 1977)). “[S]hifting to the plaintiff the risk that the
disclosures will be unilluminating” would defeat this purpose
because “[f]ew people . . . would stake their financial
5
resources on litigation when they can know nothing about the
documents or their contents prior to their release.” Id. at 1162
n.3; see also id. at 1164-65 (Tatel, J., concurring).
To be sure, Davy notes that assessing the public benefit
also requires considering “the effect of the litigation,” and
while the court’s analysis focuses on “[t]he information Davy
requested,” there is some discussion of the actual documents
released. Id. at 1159 (majority opinion). But “the effect of
the litigation” inquiry is properly understood as asking simply
whether the litigation has caused the release of requested
documents, without which the requester cannot be said to
have substantially prevailed. See id. (suggesting that
assessing “the value of the litigation” “presents a variation on”
the question whether the plaintiff has “substantially
prevail[ed]”). Lest there be any uncertainty, we clarify that
the public-benefit factor requires an ex ante assessment of the
potential public value of the information requested, with little
or no regard to whether any documents supplied prove to
advance the public interest. We can imagine a rare case
where the research harvest seemed to vindicate an otherwise
quite implausible request. But if it’s plausible ex ante that a
request has a decent chance of yielding a public benefit, the
public-benefit analysis ends there.
Of course a bare allegation that a request bears a nexus to
a matter of public concern does not automatically mean that a
public benefit is present. To have “potential public value,”
Davy, 550 F.3d at 1159, the request must have at least a
modest probability of generating useful new information
about a matter of public concern. The higher this probability
and the more valuable the new information that could be
generated, the more potential public value a request has. The
nature of the subject that the request seeks to illuminate is
obviously important. Where that subject is the Kennedy
assassinationan event with few rivals in national trauma and
6
in the array of passionately held conflicting
explanationsshowing potential public value is relatively
easy. This of course does not mean that a requester’s mere
claim of a relationship to the assassination ipso facto satisfies
the public interest criterion. Cf. Morley, 59 F. Supp. 3d at
155.
Morley’s request had potential public value. He has
proffered—and the CIA has not disputed—that Joannides
served as the CIA case officer for a Cuban group, the DRE,
with whose officers Oswald was in contact prior to the
assassination. Travel records showing a very close match
between Joannides’s and Oswald’s times in New Orleans
might, for example, have (marginally) supported one of the
hypotheses swirling around the assassination. In addition, this
court has previously determined that Morley’s request sought
information “central” to an intelligence committee’s inquiry
into the performance of the CIA and other federal agencies in
investigating the assassination. Morley v. CIA, 508 F.3d
1108, 1118 (D.C. Cir. 2007). Under these circumstances,
there was at least a modest probability that Morley’s request
would generate information relevant to the assassination or
later investigations.
The district court suggested that Morley is not entitled to
fees incurred in connection with documents that were
available to him (and the public generally) in the Archives.
Morley, 59 F. Supp. 3d at 156. The district court’s basic point
was correct: whether documents are already in the public
domain is significant because it undermines any claim that the
requester’s use of FOIA had provided public access to the
documents. See Tax Analysts v. U.S. Dep’t of Justice, 965
F.2d 1092, 1094-95 (D.C. Cir. 1992). But, unlike the
requester in Tax Analysts, who sought publicly available tax
decisions, Morley had no reason to believe that all records
pertaining to Joannides would be available. Moreover, at oral
7
argument Morley’s counsel claimed that extracting documents
of this sort from the Archives is a laborious and unreliable
process—and that some documents in the Archives cannot be
electronically located because of missing record identification
forms, which record information about each document for
input into an electronic database. The Archives website does
not clearly confirm or contradict this claim, but does indicate
that “[n]ot all the material found in the Collection is indexed
in the database.” JFK Assassination Records Collection
Reference System, https://www.archives.gov/research/jfk/
search.html#reference (last visited Jan. 4, 2016).
Before denying any fees on the ground that some of the
documents were available in the Archives, the district court
should consider (1) whether fees incurred in connection with
such documents are segregable and, if so, (2) whether the
difficulties recited above nonetheless militate against denial of
fees for such documents.
Following the prior remand on the fees issue, the district
court declined to reevaluate any factors other than public
benefit, or to rebalance the factors, despite this court’s
suggestion in Davy that the first three factors are all addressed
to the distinction “between requesters who seek documents for
public informational purposes and those who seek documents
for private advantage.” Davy, 550 F.3d at 1160. On remand,
the district court should consider the remaining factors and the
overall balance afresh.
* * *
The judgment of the district court is vacated and the case
is
Remanded.
| {
"pile_set_name": "FreeLaw"
} |
371 F.3d 854
UNITED STATES of America, Plaintiff-Appellee,v.Chalmers BROWN, Defendant-Appellant.
No. 02-6407.
United States Court of Appeals, Sixth Circuit.
Argued: February 5, 2004.
Decided and Filed: June 10, 2004.
COPYRIGHT MATERIAL OMITTED David N. Pritchard (argued), Assistant United States Attorney, John T. Tibbetts (briefed), Memphis, TN, for Appellee.
Stephen B. Shankman (argued and briefed), April R. Goode (briefed), Office of The Federal Public Defender for The Western District of Tennessee, Memphis, TN, for Appellant.
Before NELSON, GILMAN, and ROGERS, Circuit Judges.
OPINION
DAVID A. NELSON, Circuit Judge.
1
Under the federal sentencing guidelines, a criminal defendant may be given a prison sentence exceeding the range prescribed in the guidelines manual's sentencing table if the criminal history category to which the defendant has been assigned does not adequately reflect his past conduct or the likelihood that he will commit additional crimes. See the Sentencing Commission's Policy Statement at U.S.S.G. § 4A1.3.
2
The appropriate extent of an upward departure can often be measured by reference to the sentence range for a person in the next criminal history category above the defendant's. But where a defendant's criminal record has earned him so many criminal history points that he is already in the highest of the six criminal history categories created by the guidelines, the Policy Statement directs the sentencing court to "structure" the departure by moving to successively higher offense levels (the defendant's offense level being the other variable in the sentencing table) until the court comes to "a guideline range appropriate to the case." Id.
3
The defendant in the case at bar, who had at least 13 prior felony convictions, pleaded guilty to a charge of knowingly possessing a certain Norberto Arizmendi shotgun in violation of 18 U.S.C. § 922(g), the statute that criminalizes possession of a firearm by a convicted felon. The defendant's lengthy criminal record made him a prime candidate for an upward departure from the sentence range (168-210 months) specified in the table. Employing a methodology endorsed in United States v. Williams, No. 99-6030, 2000 WL 1872059 (6th Cir. Dec. 15, 2000), cert. denied, 532 U.S. 988, 121 S.Ct. 1639, 149 L.Ed.2d 498 (2001) (unpublished), the district court sentenced the defendant to imprisonment for a term of 360 months.
4
We cannot tell whether the sentence range (360 months to life) produced by the Williams methodology was one which the district court, in the exercise of its independent judgment, considered appropriate to the particular circumstances of this particular case. We shall therefore vacate the challenged judgment and remand the case for resentencing.
5
* At 10:15 on the morning of November 25, 2001, according to a subsequently prepared presentence investigation report, three robbers broke into Tara Thompson's house on Laclede Avenue in Memphis, Tennessee. Inside the house were Ms. Thompson, her boyfriend Tallen Williams, and three children ranging in age from three to 14.
6
One of the intruders — described by Ms. Thompson as a bearded man about 6 feet tall, weighing about 160 pounds and wearing a homemade ski mask — was said to have been armed with a shotgun of the "pistol pump" variety. A second intruder — a "short, chubby" man, not wearing a mask — had a small handgun. (Chalmers Brown, the defendant in the case at bar, stands 5'6" in height and weighs 187 pounds, according to the presentence report; he would thus seem to bear a closer resemblance to the short, chubby man with the handgun than to the tall, thin man with the shotgun.) The third intruder, who wore a black ski mask, was apparently unarmed.
7
Ms. Thompson called 911 while the intruders were kicking in her front door. Once inside, according to a statement Ms. Thompson was to give the police, the short, chubby man pointed his handgun at her and her children and asked where her money was. The tall, thin man likewise demanded money. In the course of the ensuing tumult, Ms. Thompson's statement says, the oldest child was repeatedly hit in the head with the shotgun and the weapon was fired once. The blast hit Ms. Thompson's dog in the foot, and some of the pellets struck Ms. Thompson in the face and arm.
8
As the police were arriving in response to the 911 call, the robbers escaped with a Playstation and some money Mr. Williams had in his pants. Two days later a crime stoppers tip implicated Chalmers Brown (the defendant herein) and two other suspects. Shown a photo-array, according to the presentence report, Ms. Thompson "positively identified Chalmers Brown as the person who shot her, assaulted her family and shot her dog." (The presentence report does not comment on the anomalous circumstance that Ms. Thompson's statement to the police described the masked man with the shotgun as being much taller and thinner than Mr. Brown; one wonders if in fact Ms. Thompson did not simply identify the bare-faced Mr. Brown as a member of the trio, without claiming that he personally wielded the shotgun.)
9
On the day after Ms. Thompson identified Mr. Brown's picture, a police officer spotted Brown getting into his Cadillac automobile. Mr. Brown was detained, and a search of the Cadillac turned up a black ski mask behind the driver's seat and a loaded shotgun in the trunk. Mr. Brown admitted ownership of the shotgun.
10
Charged with both state and federal crimes, Mr. Brown found himself moved along the federal track first. A superseding indictment handed up by a federal grand jury in April of 2002 charged him with three counts of violating the felon-in-possession statute, 18 U.S.C. § 922(g). Mr. Brown pleaded guilty to the first count of the superseding indictment pursuant to a Rule 11 plea agreement. (It was the first count, as we have indicated, that charged him with illegal possession of a Norberto Arizmendi shotgun.) The other two counts were dismissed by the government.
11
The probation officer who prepared Mr. Brown's presentence investigation report originally assumed that the Norberto Arizmendi shotgun was the same weapon with which Ms. Thompson and her son and dog had been assaulted. Based on this assumption, and using the 2001 edition of the guidelines manual, the probation officer assigned Mr. Brown an offense level of 31. In a subsequent addendum to the presentence report, however, the officer noted that whereas Ms. Thompson had described the shotgun used in the robbery as a "pistol pump" weapon, the Norberto Arizmendi referred to in Count One of the indictment did not have a pistol pump feature. The addendum recommended that Brown's total offense level be set at 30, rather than 31, unless the United States could prove that the weapon recovered at the time of the arrest was the same one used during the home invasion.
12
The government could not prove that the weapons were one and the same, and the district court therefore accepted the revised computation of Brown's offense level. Under the manual's sentencing table — an abbreviated version of which is included as an appendix to this opinion — a defendant who has earned a place in Criminal History Category VI and who has an offense level of 30 is assigned a guideline sentence range of 168-210 months.
13
Prior to issuance of the addendum to the presentence report, the government had moved for an upward departure from the range (188-235 months) specified in the original report. The basis for the motion was that while a minimum of only 13 criminal history points suffices to place a defendant in Criminal History Category VI, Mr. Brown had amassed more than four times that number of points — 53, to be precise. Category VI thus failed adequately to reflect Mr. Brown's past criminal behavior, the government argued.
14
The district court agreed. The court also accepted the methodology proposed by the government for determining the extent of the upward departure. That methodology, as we have said, was one approved by the Sixth Circuit's unpublished decision in the Williams case, available electronically at 2000 WL 1872059.
15
The sentencing court in Williams used a criminal history scale of its own creation, with phantom categories designed to trigger incremental increases in the defendant's offense level. See Williams, 2000 WL 1872059, at **2. The Williams methodology provides for no increase in the offense level of a defendant whose criminal history score is 15 or less. A criminal history score of 16 to 18 points produces a one-level increase in the offense level. A criminal history score of 19 to 21 leads to a two-level increase, and higher brackets of criminal history points lead to further increases in the offense level. A criminal history score of 48 or more yields an increase of 10 in the offense level.
16
Accepting the Williams methodology as "persuasive and logical," the court below treated Mr. Brown as having an offense level of 40 rather than 30. As can be seen from a glance at the sentencing table set forth in the appendix, infra, the range prescribed for a defendant in Criminal History Category VI who has an offense level of 40 is imprisonment for a term in the range of 360 months to life.
17
The government sought to have the 39-year-old Mr. Brown sentenced to life imprisonment. The district court, however, opted to impose a sentence — 30 years — at the bottom of the guideline range determined under Williams. Mr. Brown has perfected a timely appeal from this 30-year sentence.
II
18
In general, a departure is permissible if the sentencing court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration" by the guidelines. 18 U.S.C. § 3553(b). Thus U.S.S.G. § 4A1.3 stated (before adoption of a change in wording not relevant here) that "[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range."
19
Mr. Brown does not deny that an upward departure was warranted in light of his remarkable criminal history. He contends, rather, that it was inconsistent with U.S.S.G. § 4A1.3 for the district court to determine the extent of the departure by employing jerry-built criminal history categories not tailored to his individual case.
20
Although § 4A1.3 is designated a policy statement, rather than a guideline, it is binding on the district courts. See Stinson v. United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Failure to follow § 4A1.3 constitutes an incorrect application of the sentencing guidelines, see id., and is thus an abuse of discretion. See United States v. Valentine, 100 F.3d 1209, 1210 (6th Cir.1996).
21
The 2001 edition of the Sentencing Guidelines Manual contained a passage (subsequently the subject of minor changes in wording) that read as follows:
22
"Where the court determines that the extent and nature of the defendant's criminal history, taken together, are sufficient to warrant an upward departure from Criminal History Category VI, the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case."
23
(The reader who does not have a clear mental image of the configuration of the matrix to which the foregoing passage alludes may wish to examine the sentencing table at this juncture. See Appendix, infra.) "[W]hen the court cannot move horizontally across the guideline grid because there are no criminal history categories greater than VI," as we put it in United States v. Thomas, 24 F.3d 829, 834 (6th Cir.), cert. denied, 513 U.S. 976, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994), "[the court] should move vertically down the offense level axis until it locates a range which it deems appropriate to the facts of the case."
24
Our earlier decision in United States v. Carr, 5 F.3d 986, 994 (6th Cir.1993), had suggested that § 4A1.3 requires a district court to consider the sentencing ranges that would result from an increase of one offense level, two offense levels, and so on, increasing the defendant's offense level by more than one only if the court "demonstrate[s] why it found the sentence imposed by each intervening level to be too lenient." Carr, 5 F.3d at 994.1 See also United States v. Gray, 16 F.3d 681, 683 (6th Cir.1994). But Thomas held that Carr's interpretation of § 4A1.3 did not "require[] a sentencing court to explain formalistically, gridblock-by-gridblock, why each intervening range is inappropriate." Thomas, 24 F.3d at 835.
25
"We read [§ 4A1.3] to require a court to continue moving down offense-level ranges only until it finds a range which would provide an appropriate sentence for the defendant, but no further. We do not read this to require the court to move only one level, or to explain its rejection of each and every intervening level. The language indicates quite clearly that the court should continue to consider ranges `until it finds' an appropriate sentence for the defendant before it, but nothing in § 4A1.3 calls for a more detailed, gridblock-by-gridblock approach...." Id. at 834.
26
"The approach required of the sentencing court when departing beyond Criminal History Category VI," Thomas holds, "is to consider carefully all of the facts and circumstances surrounding the case which affect the departure, and from them determine an appropriate sentence for the particular defendant." Id. at 835. If a court selects an appropriate sentence range in this manner, and if the court increases the defendant's offense level no more than necessary to arrive at that range on the sentencing table, § 4A1.3 is satisfied.
27
This is not to say that § 4A1.3 prohibits a district court from using the Williams construct (or some similar expedient) as a reference point when determining the extent of an upward departure. But the use of such a construct — particularly one developed by a different judge in a different case — cannot replace the exercise of the court's independent judgment. If a district court chooses to follow the Williams approach in the beginning, the resultant sentence range is not to be treated as definitive; at the end of the day the court must decide, in light of all the facts and circumstances of the particular case before it, whether the range in question is "appropriate to the case." (As Thomas makes clear, the process of "moving incrementally down the sentencing table to the next higher offense level," see U.S.S.G. § 4A1.3, is simply a means to an end; the whole point of the exercise is to "find[] a guideline range appropriate to the case." Id.) If, having elected to use the Williams methodology as a navigational aid, the court finds that the range to which that methodology points is not "a guideline range appropriate to the case," the court must select a different range.
28
In the case at bar, it seems to us, the record does not reflect an independent determination by the district court that the Williams range is appropriate for this particular case in light of the particularized facts of the case. The court knew, to be sure, that it was not required to use the Williams methodology; the court twice referred to Williams as an "example." But after choosing to apply Williams, the court accepted the resulting sentence range without comment. As far as the record indicates, the court gave no independent thought to whether that range was appropriate under the individual circumstances of Mr. Brown's case.
29
It is true that, in rejecting the government's recommendation of a sentence of life in prison, the district court said that "360 months is adequate punishment for these offenses." But we do not interpret this comment as a determination that 360 months to life is an appropriate sentence range. The question is whether a departure to a range starting below 360 months would be adequate and appropriate for Mr. Brown's offense. That is a question the court does not seem to have addressed.
30
The sentence is VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion.
31
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category (Criminal History Points)
OFFENSE I II III IV V VI
LEVEL (0-1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, (13 OR
12) MORE)
---------------------------------------------------------------------------------
|
1 | 0-6 0-6 0-6 0-6 0-6 0-6
2 | 0-6 0-6 0-6 0-6 0-6 1-7
3 | 0-6 0-6 0-6 0-6 2-8 3-9
|
|
|
* * * | * * * * * *
|
|
|
30 | 97-121 108-135 121-151 135-168 151-188 168-210
31 | 108-135 121-151 135-168 151-188 168-210 188-235
32 | 121-151 135-168 151-188 168-210 188-235 210-262
33 | 135-168 151-188 168-210 188-235 210-262 235-293
34 | 151-188 168-210 188-235 210-262 235-293 262-327
35 | 168-210 188-235 210-262 235-293 262-327 292-365
36 | 188-235 210-262 235-293 262-327 292-365 324-405
37 | 210-262 235-293 262-327 292-365 324-405 360-life
38 | 235-293 262-327 292-365 324-405 360-life 360-life
39 | 262-327 292-365 324-405 360-life 360-life 360-life
40 | 292-365 324-405 360-life 360-life 360-life 360-life
41 | 324-405 360-life 360-life 360-life 360-life 360-life
42 | 360-life 360-life 360-life 360-life 360-life 360-life
43 | life life life life life life
Notes:
1
Carr's statements as to how a sentencing court is to effect a multi-level increase in a defendant's offense level may be regarded as dicta, given that we were not reviewing such an increase in that case. The departure issue in Carr was whether the district court had erred by hypothesizing a criminal history category greater than VI rather than increasing the defendant's offense level. See Carr, 5 F.3d at 994.
| {
"pile_set_name": "FreeLaw"
} |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 5, 2010
No. 09-12997 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00117-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS D. DALE,
a.k.a. Curtis Donnell Dale,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 5, 2010)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Robert Augustus Harper, Jr., appointed counsel for Curtis D. Dale in this
direct criminal appeal, has moved to withdraw from further representation of the
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
independent examination of the entire record reveals no arguable issues of merit,
counsel’s motion to withdraw is GRANTED, and Dale’s conviction and sentence
are AFFIRMED.
2
| {
"pile_set_name": "FreeLaw"
} |
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Apr 04 2014, 8:46 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER M. FORREST, ESQ. MICHAEL H. MICHMERHUIZEN
Forrest Legal LLC Barrett & McNagny LLP
Fort Wayne, Indiana Fort Wayne, Indiana
DANIEL M. GRALY, ESQ. CORNELIUS B. HAYES
Fort Wayne, Indiana Hayes & Hayes
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE MARRIAGE OF: )
CARRIE A. CHAPMAN, )
)
Appellant, )
)
vs. ) No. 02A05-1307-DR-343
)
STEPHEN L. CHAPMAN, )
)
Appellee. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Robert J. Schmoll, Special Judge
Cause No. 02D07-0907-DR-714
April 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Carrie Chapman (Mother) appeals the trial court’s award of child support in the
dissolution of her marriage to Stephen Chapman (Father).
We affirm.
Issue
Mother raises two issues on appeal, one of which we find dispositive and restate as
whether the trial court abused its discretion when it failed to impute income to Father from a
trust and its successor limited liability company.1
Facts and Procedural History
In December 1997, Father’s parents created a trust, which provided that Father, the
sole beneficiary, would receive a distribution of the trust’s assets on his fifty-fifth birthday on
November 13, 2010. The trust’s assets initially consisted of stock in Waterfield Mortgage, a
company that Father’s grandfather founded in the 1920’s or 1930’s. Father’s mother
inherited the stock from her parents. The mortgage company was eventually sold, and the
stock was replaced with cash and other assets.
At the time the trust was created, Mother and Father were engaged. They married a
month later in January 1998. During the course of the marriage, Father was employed as an
attorney at a local law firm, and Mother took care of the parties’ home and children, three
boys born in 2000, 2002, and 2005. In 2006, apparently following the sale of the stock in the
1
Mother also argues that the trial court’s failure to properly calculate Father’s weekly gross income requires
reapportionment of attorney fees. Because we affirm the trial court’s calculation of Father’s weekly gross
income, we need not apportion attorney fees.
2
trust, Father transferred $3,000,000 to Mother for estate planning purposes. At some point,
Father’s parents established separate trusts for each of the parties’ sons. In 2009, these trusts
had values of $584,000, $616,000, and $479,000.
Mother filed a petition for dissolution of marriage in June 2009. In May 2010, the
trustees filed a verified petition to reform the trust and modify the date of distribution of the
trust assets to Father. At a hearing on the petition, Father’s father testified that the purpose of
the trust was to pass the property inherited by Father’s mother to Father. In November 2010,
the trial court granted the trustee’s petition to reform the trust based on language in the trust
and ordered that Father’s interest in the trust would not vest prior to six months after the final
dissolution decree and completion of any appeal. Mother appealed, and this Court reversed
the trial court’s decision. See Chapman v. Chapman, 953 N.E.2d 573 (Ind. Ct. App. 2011),
trans. denied. Specifically, this court held that language in the trust did not support the
reformation. Id. at 583.
After the Indiana Supreme Court denied transfer in Chapman, Father’s father,
individually and as trustee of the trust, created a limited liability corporation known as
Pathfinder Investments, LLC. In March 2012, Pathfinder managers amended the agreement
and exchanged $19.5 million in trust assets for membership units in the limited liability
corporation. Father had no prior knowledge of the exchange. Although Father owns
approximately 95% of Pathfinder, he has no control over the management of the company.
He is prohibited from withdrawing or reducing the capital contributions without the express
consent of all other members, he forfeited all ownership in the assets transferred to
3
Pathfinder, he has no right to request or demand payment of income earned by the company,
and he is not allowed to resign or liquidate his ownership interest or transfer ownership units
without the consent of the other members who can object to the liquidation for any reason.
The stated purpose for the creation of Pathfinder was an estate planning device.
A few months later, in May 2012, the trial court approved the parties’ Partial
Mediated Settlement Agreement, which resolved all issues relating to the division of marital
assets and liabilities. Specifically, pursuant to the terms of this agreement, Mother was
awarded in part the mortgage-free family home in Fort Wayne valued at $500,000, all
household goods in her possession at the home, a 2009 Lexus, and all cash in her possession,
including at least seven different accounts. Father was awarded in part the family’s
condominium in Boca Raton, Florida, the Fort Wayne home he purchased after the parties
separated, all possessions in those two homes, a 2005 Volvo, all General Electric stock, and
“[a]ll assets, including growth thereon or proceeds thereof in whatever current form of the
Stephen L. Chapman Irrevocable Trust established in 1997.” Appellant’s App. p. 100. The
agreement further provided that Father would pay Mother a lump sum of $4,300,000 as a
property equalization payment.
In December 2012, the parties submitted a Second Partial Mediated Settlement
Agreement, which resolved all issues relating to child custody and parenting time.
Specifically, pursuant to the terms of the agreement, the parties share joint legal custody of
the three boys. Mother has primary physical custody, and Father has parenting time
consistent with the terms of the Indiana Parenting Time Guidelines, subject temporarily to
4
specific Settlement Agreement provisions.
In January 2013, the trial court held a three-day hearing to determine the sole
remaining issue regarding child support. The parties agreed that Mother’s weekly gross
income for child support purposes is $3609, which is based on Mother’s income from her
$7,000,000 investment portfolio. Father argued that his weekly gross income for child
support purposes is $7,638, which is based on his income from his $11,000,000 investment
portfolio. According to Father, based on these two incomes, his weekly child support
obligation would be $893.56.
Mother, however, asked the trial court to impute income to Father from the trust and
its successor Pathfinder, LLC. According to Mother, imputing this income would increase
Father’s weekly gross income to $18,956. With this imputed income, Father’s weekly child
support obligation would be $2,221.67 per week.
Although the parties never used the trust income during the course of the marriage,
both parties testified at the hearing that their children had a high standard of living during the
marriage. Specifically, the children attended a private school, went on several vacations
every year, had large birthday parties, and participated in country club activities such as
swimming, golf, and tennis. According to Mother, the $861 she was receiving as child
support at the time of the hearing was not sufficient for her sons to maintain the standard of
living they enjoyed during the marriage. Father, however, testified that the children’s
standard of living is actually higher now than it would have been had the marriage remained
intact. According to Father, although Mother was awarded a mortgage-free $500,000 home
5
in the property settlement, she recently purchased a $711,000 home, which is larger than the
family home. She also added wood floors and a bedroom to the new home for an additional
$44,000. As a result, the children now live in a nicer house than they did during the marriage.
In addition, Father continues to pay the $42,000 tuition for their private school as well as the
county club fees.
Following the hearing, the trial court issued an order denying Mother’s request to
impute income from the trust and its successor Pathfinder, LLC, to Father’s weekly gross
income. Mother appeals.
Discussion and Decision
Mother argues that the trial court erred in calculating Father’s weekly gross income.
Specifically, she contends that the trial court should have imputed income to Father from the
trust and its successor limited liability company.
Child support calculations are made utilizing the income shares model set forth in the
Indiana Child Support Guidelines. Sandlin v. Sandlin, 972 N.E.2d 371, 374 (Ind. Ct. App.
2012). The guideline approach is promulgated in Indiana Code section 31-16-6-1, which
considers, among other things, the standard of living the child would have enjoyed if the
marriage had not been dissolved and the financial resources and needs of the noncustodial
parent. Nikolayev v. Nikolayev, 985 N.E.2d 29, 33 (Ind. Ct. App. 2013). The trial court is
vested with broad discretion in making child support determinations. Sandlin, 972 N.E.2d at
374. A trial court’s calculation of child support under the Guidelines is presumptively valid.
Morgal-Henrich v. Henrich, 970 N.E.2d 207, 212 (Ind. Ct. App. 2012).
6
A trial court’s decision regarding child support will be upheld unless the trial court has
abused its discretion. Id. A trial court abuses its discretion when its decision is clearly
against the logic and the effect of the facts and circumstances before the court or if the court
has misinterpreted the law. Id. We do not reweigh the evidence or judge the credibility of
the witnesses upon review. Sandlin, 972 N.E.2d at 375. Rather, we consider only the
evidence most favorable to the judgment and the reasonable inferences to be drawn
therefrom. Id.
The Indiana Child Support Guidelines define “weekly gross income” in part as
follows:
[A]ctual weekly gross income of the parent if employed to full capacity,
potential income if unemployed or underemployed, and imputed income based
upon “in-kind” benefits.
This court has previously explained that the phrase “actual income” as used in the Guidelines
necessarily implies that the income be not only existing in fact but also currently received by
the parent and available for his immediate use. Carmichael v. Siegel, 754 N.E.2d 619, 628
(Ind. Ct. App. 2001).
In Carmichael, which is instructive to the case before us, the parents were divorced in
1992. Father assigned $286,000 in various IRAs to Mother. The trial court granted custody
of the parties’ two children to Father. When Father’s income declined and the parties’ son’s
expenses increased, Father filed a petition to modify Mother’s support obligation. Following
a hearing, the trial court imputed $20,400 to Mother’s weekly gross income based on the
earnings of her IRAs and ordered her to pay $10,000 of her son’s yearly tuition as well as
7
$109 per week in child support. Id. at 624-25.
On appeal, we concluded that where the annual returns of a parent’s IRAs are
automatically reinvested and there is no indication that previous withdrawals from the IRAs
were made to fund the parent’s living or lifestyle expenses, those returns generally should not
be considered “actual income” when calculating the parent’s child support obligation. Id. at
629. Such returns are not currently received by the parent nor immediately available for his
or her use. Id. We therefore concluded that Mother’s IRA earnings were not weekly gross
income as the phrase is used in the Child Support Guidelines. Id.
However, we also recognized that income that is not “actual” may be imputed to a
parent under certain circumstances. Id. For example, a trial court may impute income to a
parent that is voluntarily unemployed considering the parent’s work history, occupational
qualifications, prevailing job opportunities, and earnings levels in the community. Id. at 625,
629. In-kind benefits that a parent receives that reduce his or her living expenses may also be
imputed as income. Id. Further, the public policy behind the payment of child support may
require the imputing of income in any situation where a parent is intentionally committing
misconduct by deliberately hiding his or her income in order to avoid making support
payments. Id. at 630. Lastly, regular and continuing payments made by a subsequent spouse
that reduce the parent’s costs may also be the basis for imputing income. Id. Our review of
the purposes underlying the imputing of income revealed that none was implicated. Id. at
629. We therefore concluded that the trial court erred in imputing income from the earnings
of Mother’s IRAs. Id,
8
Here, as in Carmichael, growth in Pathfinder is automatically reinvested because
Father has no right to request or demand payment of income earned by the company, and he
has never taken withdrawals from the trust to fund his living or lifestyle expenses. Because
Father does not currently receive these returns, and they are not immediately available for his
use, earnings from the company are not weekly gross income.
Further, none of the purposes underlying the imputing of income are implicated in this
case. Specifically, Father is not voluntarily underemployed, no in-kind benefits supplement
his income, Father is not deliberately hiding his income to avoid making support payments,
and he has no subsequent spouse that reduces his costs. Here, as in Carmichael, the trial
court did not err in failing to impute income from the trust and its successor company to
Father’s weekly gross income for child support purposes.
We further note that our review of the evidence reveals that the trust’s assets initially
consisted of stock in a mortgage company founded by Father’s grandparents eighty to ninety
years ago. The purpose of the trust was to pass this property to Father. The trust and all
assets including growth thereon were awarded to Father in a mediated settlement, and the
parties never used the trust income during the course of the marriage. Father’s support
obligation will be approximately $900 per week in addition to the $42,000 he pays for his
children’s education and country club dues. The parties’ children’s standard of living has not
suffered.
Our standard of review is flexible enough to permit the trial court to fashion a child
support order that is tailored to the circumstances of the particular case before it and
9
consequently reflects its best judgment. Johnson v. Johnson, 999 N.E.2d 56, 60 (Ind. 2013).
Here, the trial court fashioned a solution that it believed was equitable to both parties, and its
decision is not clearly against the logic and effect of the facts and circumstances before the
court.
Conclusion
The trial court did not abuse its discretion when it failed to impute income to Father
from the trust and its successor limited liability company.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
10
| {
"pile_set_name": "FreeLaw"
} |
06-2125
Peralta-Taveras v. Gonzales
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: May 10, 2007 Decided: May 22, 2007
Amended: June 6, 2007)
Docket No. 06-2125-ag
ROBERTO PERALTA-TAVERAS,
Petitioner,
– v. –
ATTORNEY GENERAL, ALBERTO R. GONZALES, DEPARTMENT OF HOMELAND
SECURITY, TOM RIDGE, SECRETARY, US IMMIGRATION AND CUSTOMS
ENFORCEMENT, MICHAEL GARCIA, ASSISTANT SECRETARY, INS DISTRICT
DIRECTOR, STEVEN FARQUHARSON, BOSTON, DHS DETENTION & REMOVAL
OPERATIONS, GEORGE SULLIVAN, INTERIM OFFICER IN CHARGE,
Respondents.
Before: B.D. PARKER, RAGGI, WESLEY, Circuit Judges.
Petition for review of the BIA’s decision denying applications for relief under former
INA § 212(c) and current INA § 240A(a). Denied.
JUSTIN CONLON, North Haven, CT, for Petitioner.
WILLIAM J. NARDINI, Assistant United States Attorney, (Douglas P. Morabito,
-1-
Assistant United States Attorney, on the brief) for Kevin O’Connor, United States
Attorney for the District of Connecticut, for Respondents.
AMENDED PER CURIAM:
Petitioner Roberto Peralta-Taveras (“Peralta”), a native and citizen of the Dominican
Republic, seeks review of a July 8, 2004 order of the BIA affirming the January 16, 2004
decision of Immigration Judge (“IJ”) Michael W. Straus denying Peralta’s applications for
waiver of deportation under former § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996), and
cancellation of removal under § 240A(a) of the INA, 8 U.S.C. § 1229b(a). In re Roberto
Peralta-Taveras, No. A 34 018 588 (B.I.A. July 8, 2004), aff’g No. A 34 018 588 (Immig. Ct.
Hartford Jan. 16, 2004).
BACKGROUND
On January 16, 1996, Peralta was convicted of attempted possession of a forged
instrument and sale of a controlled substance. On June 9, 1997, he was convicted of attempted
possession of marijuana. Peralta pled guilty in both instances. Removal proceedings were
initiated in 2000, charging that Peralta was subject to removal from the United States because his
1996 narcotics trafficking offense was an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii),
see 8 U.S.C. § 1101(a)(43)(B), as well as a controlled substance offense under 8 U.S.C. §
1227(a)(2)(B)(i).1 On January 16, 2004, after Peralta conceded removability, the IJ found Peralta
removable to the Dominican Republic. The IJ denied Peralta’s applications for waiver of
deportation under § 212(c) and cancellation of removal under § 240A(a), concluding that (1)
although Peralta was eligible for former § 212(c) relief, the plain language of § 240A(a)(3)
1
In 2001, the INS supplemented these allegations and contended that Peralta’s other
convictions also rendered him removable.
-2-
precludes Peralta from receiving cancellation of removal because of his aggravated felony
convictions, and (2) section 240A(c)(6) barred simultaneous relief under both § 212(c) and §
240A. The BIA affirmed the IJ’s decision without opinion.
Peralta filed a petition for a writ of habeas corpus in the United States District Court for
the District of Connecticut in July 2004, seeking relief from the order of removal. In May 2006,
the district court transferred the habeas petition to us pursuant to the REAL ID Act of 2005, Pub.
L. No. 109-13, Div. B., § 106, 119 Stat. 231, 310. Peralta seeks a remand to the IJ to obtain
simultaneous consideration of his applications for relief under § 212(c) and § 240A(a). We deny
the petition.
DISCUSSION
Prior to 1990, the Attorney General was authorized to grant discretionary relief from
exclusion or deportation under former § 212(c) of the INA to certain lawful permanent resident
aliens who had lawfully resided in the United States for seven consecutive years. See 8 U.S.C. §
1182(c) (repealed 1996). Congress amended the INA in 1990 to eliminate § 212(c) relief for any
“alien who has been convicted of an aggravated felony and has served a term of imprisonment of
at least 5 years.” Immigration Act of 1990 (“IMMACT”), Pub. L. No. 101-649, § 511(a), 104
Stat. 4978, 5052 (Nov. 29, 1990). In 1996, Congress again amended § 212(c) to bar relief to any
alien convicted of an aggravated felony, regardless of the term of imprisonment. See Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 440(d),
110 Stat. 1214, 1277 (Apr. 24, 1996). Later that year, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 304(b),
110 Stat. 3009-546, 3009-597 (Sept. 30, 1996), which repealed § 212(c) altogether. Section
-3-
240A(a) of the IIRIRA authorizes the Attorney General to “cancel removal” of an alien who is
inadmissible or deportable if the alien:
(1) has been an alien lawfully admitted for permanent residence for not less than 5
years,
(2) has resided in the United States continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a).
In 2001, applying retroactivity principles, the Supreme Court held in United States v. St.
Cyr, 533 U.S. 289, 315 (2001), that if an alien was eligible for a § 212(c) waiver when he
pleaded guilty prior to the enactment of IIRIRA, he remains eligible for that form of relief.
Peralta’s 1996 aggravated felony convictions occurred prior to the enactment of IIRIRA, and his
1997 conviction occurred after the passage of IIRIRA. Accordingly, it is undisputed that Peralta
would have been eligible for waiver of deportation under § 212(c) for his 1996 aggravated felony
convictions despite Congress’s subsequent repeal of that statute. The issue presented here,
however, is whether Peralta is also eligible for cancellation of removal under § 240A(a) for his
1997 drug conviction through simultaneous consideration of his applications for relief under §
212(c) and § 240A(a).
The IJ concluded that cancellation of removal was ultimately not available to Peralta
because (1) his 1996 aggravated felony convictions rendered him ineligible for cancellation of
removal for his 1997 drug conviction under the plain language of § 240A(a)(3); and (2) section
240A(c)(6) barred simultaneous relief under both § 240A(a) and § 212(c). Peralta argues that he
is entitled to such relief because Congress’s intention as to the application of § 240A(a) to a
petitioner who is also eligible for § 212(c) relief is ambiguous. This ambiguity, according to
-4-
Peralta, should be interpreted in his favor so as to permit him to obtain simultaneous
consideration of his applications for waiver under § 212(c) and cancellation of removal under §
240A(a), which would render him eligible for discretionary relief from deportation. We disagree.
Where, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s opinion.
See Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). We do not extend Chevron
deference to any statutory construction of the INA set forth in a summarily affirmed IJ opinion.
See, e.g., Shi Liang Lin v. U.S. Dep’t. of Justice, 416 F.3d 184, 190-91 (2d Cir. 2005).
Peralta’s challenge to the IJ’s decision begins with his assertion that because Congress
repealed § 212(c) and replaced it with § 240A(a) and could not have foreseen that the Supreme
Court in St. Cyr would maintain eligibility for § 212(c) relief for certain aliens after it was
repealed, its intention with respect to whether an alien may seek simultaneous relief under §
240A(a) and § 212(c) is necessarily also ambiguous.
This argument is contrary to the well-established rules of statutory construction, which
instruct that our inquiry begins with the plain language of the statute and “where the statutory
language provides a clear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999); see also Ruiz-Almanzar v. Ridge, No. 05-4380, – F.3d –, 2007 U.S. App.
LEXIS 10867, *11-13 (2d Cir. May 8, 2007) (holding that under a plain-language analysis,
AEDPA § 440(d) is unambiguous in barring relief to all aggravated felons). The text of §
240A(a) is clear and unambiguous – cancellation of removal is not available to aliens who have
been convicted of an aggravated felony. 2 Legislative history is not to be used to “beget”
2
To the extent Peralta implies that the § 240A(a) bar against eligibility for aggravated
felons violates due process, there is no improper retroactive application of the statute. See
Kuhali v. Reno, 266 F.3d 93, 111 (2d Cir. 2001) (holding that retroactive application of IIRIRA’s
changes to the definition of “aggravated felony” does not violate due process); Campbell v.
-5-
ambiguity in an otherwise unambiguous statute. Callanan v. United States, 364 U.S. 587, 596
(1961). The IJ’s application of § 240A(a) was straightforward: since Peralta has been convicted
of an aggravated felony, he is not eligible for cancellation of removal.
The IJ correctly concluded that Peralta cannot obtain relief from deportation through
simultaneous consideration of his applications for cancellation of removal under § 240A and a
waiver under § 212(c). The granting of a § 212(c) waiver does not expunge the underlying
offense or its categorization as an aggravated felony. See, e.g., Chan v. Gantner, 464 F.3d 289,
295 (2d Cir. 2006) (observing that “a waiver under section 212(c) does not preclude the INS or
the courts from relying on the underlying offense to bar other forms of immigration relief or
benefits”); Matter of Balderas, 20 I. & N. Dec. 389, 391 (B.I.A. 1991) (“[S]ince a grant of
section 212(c) relief ‘waives’ the finding of . . . deportability rather than the basis of the
excludability itself, the crimes alleged to be grounds for . . . deportability do not disappear from
the alien’s record for immigration purposes.”). Therefore, regardless of the availability of a §
212(c) waiver, Peralta’s 1996 aggravated felony convictions remain and preclude his application
for cancellation of removal under § 240A(a). While we have not previously ruled on this
question, the Third, Fifth, Eighth, and Ninth Circuits have recently rejected similar claims --
holding that, the granting of § 212(c) relief waives deportability but, under the plain language of
Ashcroft, No. 04-2016, 2004 WL 1563022, at * 4-5 (E.D. Pa. July 12, 2004) (rejecting a
petitioner’s due process challenge to retroactive application of the aggravated felony bar in §
240A(a)(3)). The determination of whether a statute is impermissibly retroactive looks to
whether application of the statutory provision “attaches a new disability, in respect to
transactions or considerations already past” and “should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled expectations.” St. Cyr, 533 U.S. at
321 (internal quotation marks omitted). At the time of Peralta’s 1997 guilty plea for attempted
marijuana possession – a controlled substance offense subjecting him to removal under 8 U.S.C.
§ 1227(a)(2)(B)(i) – Peralta was on notice that his prior convictions would preclude him from
seeking § 240A relief if convicted of another removable offense.
-6-
§ 240A(a), the aggravated felony conviction would still bar cancellation of removal. See Becker
v. Gonzales, 473 F.3d 1000, 1003-04 (9th Cir. 2007); Amouzadeh v. Winfrey, 467 F.3d 451, 458-
59 (5th Cir. 2006); Munoz-Yepez v. Gonzales, 465 F.3d 347, 350 (8th Cir. 2006); Rodriguez-
Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005). We align ourselves with those circuits.
Peralta’s reliance on Matter of Gabryelsky, 20 I. & N. Dec. 750 (B.I.A. 1993), where the
BIA allowed simultaneous applications for adjustment of status under § 245(a) and waiver of
inadmissibility under § 212(c), is misplaced. In that case, the BIA based its conclusion on a
regulation permitting combined § 245(a) and § 212(c) applications, and on the fact that granting
each form of relief made an alien statutorily eligible for the other form. Id. at 754-56.
Gabryelsky, who had both a drug conviction and a weapons conviction, could use § 212(c) to
waive the inadmissibility finding that arose from his drug conviction. Id. at 753. Thus, by
obtaining § 212(c) relief, Gabryelsky would remove the statutory bar to his adjustment of status
application. See 8 U.S.C. § 245(a) (requiring that the applicant be “admissible to the United
States for permanent residence” in order to be eligible for adjustment of status). Crucial to the
holding in Gabryelsky is the fact that the statutory bar to eligibility for adjustment of status was
the existence of an inadmissibility ground, which is precisely what § 212(c) waives. In contrast,
the statutory bar to eligibility in § 240A(a) is the conviction for an aggravated felony, which §
212(c) cannot remove. Thus, even if Peralta could waive the finding of inadmissibility with
regard to his aggravated felony conviction, he would still remain a person who has been
“convicted of an aggravated felony.” It is that conviction itself that renders Peralta ineligible for
the requested relief.
-7-
Moreover, granting one form of relief precludes the other, whether or not the applications
are simultaneous. See Munoz-Yepez, 465 F.3d at 350 (“[I]t does not matter when the
discretionary § 212(c) is granted; it disqualifies the alien from 240A relief for a second, post-
IIRIRA offense.” (emphasis in original)). Section 240A(c)(6) expressly precludes cancellation of
removal for aliens who have previously received relief under § 212(c):
The provisions of subsections (a) and (b)(1) of this section shall not apply to any
of the following aliens: . . .
(6) An alien whose removal has previously been cancelled under this section or
whose deportation was suspended under section 1254(a) of this title or who has
been granted relief under section 1182(c) of this title [former INA § 212(c)], as
such sections were in effect before September 30, 1996.
8 U.S.C. § 1229b(c)(6).3 As explained above, Peralta contends that, if he first obtains a § 212(c)
waiver for his January 1996 convictions, those convictions “cease to be aggravated felonies that
make him removable,” thus making him eligible for cancellation of removal under § 240A(a).
Under Peralta’s theory of relief, then, the § 212(c) waiver must be granted before cancellation of
removal. The plain language of § 240A(c)(6), however, bars an alien who previously received §
212(c) relief from receiving cancellation of removal. Peralta’s claim thus cannot survive §
240A(c)(6).
3
Peralta again attempts to inject ambiguity into the plain language of § 240A(c)(6),
arguing that, after St. Cyr, the statute “is ambiguous [as to] whether Congress intended for this
section to apply to post-IIRIRA § 212(c) waivers.” As discussed above, Peralta’s assertion does
not comport with the rules of statutory construction. Furthermore, Peralta does not claim that
application of § 240A(c) to a post-IIRIRA § 212(c) waiver violates his right to due process, and
“agrees that the provisions of subsection (c)(6) indicate that Congress only wanted to give lawful
permanent residents one chance to obtain waiver of removal for criminal convictions.” See
Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th Cir. 2006) (observing that “Congress
stated unequivocally [through § 240A(c)(6)] that an alien may not have more than one bite at the
cancellation of removal/waiver of inadmissibility apple”).
-8-
Because § 240A(a) unambiguously precludes cancellation of removal for aliens
previously convicted of an aggravated felony or previously granted relief under § 212(c), we do
not address Peralta’s arguments that the provision should be interpreted in conformity with
United States treaties and customary international law. See Hughes Aircraft, 525 U.S. at 438;
Guaylupo-Moya v. Gonzales, 423 F.3d 121, 133 (2d Cir. 2005) (observing that if Congress’s
intent is plain from the statute, “then Article III courts, which can overrule Congressional
enactments only when such enactments conflict with the Constitution, must enforce the intent of
Congress irrespective of whether the statute conforms to customary international law” (internal
quotation marks omitted)).
CONCLUSION
For the foregoing reasons, the petition for review is DENIED. Having completed our
review, any stay of removal that the Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is DENIED as moot.
-9-
| {
"pile_set_name": "FreeLaw"
} |
33 F.3d 1379
Polychem Intern'lv.Hitachi
NO. 92-02743
United States Court of Appeals,Fifth Circuit.
Aug 12, 1994
1
Appeal From: S.D.Tex.
2
AFFIRMED IN PART.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Submitted On Brief September 20, 2005 Session
W. ROBERT VANCE, JR., ET AL. v. ROBERT C. McEWAN, M.D., ET AL.
Direct Appeal from the Chancery Court for Shelby County
No. CH-03-1098-3 D.J. Alissandratos, Chancellor
No. W2005-00060-COA-R3-CV - Filed December 21, 2005
This case arises from lease negotiations between Plaintiff W. Robert Vance, Jr. (“Plaintiff”) and
Defendants, Robert C. McEwan, Dane Flippen, and Edward Caldwell (“the Defendants”). After the
Defendants ultimately decided not to sign a lease with Plaintiff, Plaintiff filed suit against
Defendants asserting claims for (1) breach of agreement to enter into a lease agreement; (2) breach
of lease agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent
misrepresentation. After a trial on the merits, the trial court entered an order disposing of Plaintiff’s
contract claims. Plaintiff subsequently filed a “Motion for New Trial or, in the Alternative, to Alter
or Amend Judgment and/or Make and/or to Make Additional Findings of Fact Pursuant to Tennessee
Rules of Civil Procedure 59.02, 59.04, and 52.02,” which the trial court denied. Plaintiff appealed.
Because we find that the trial court failed to execute a final order disposing with all of Plaintiff’s
asserted causes of action, we dismiss this appeal for lack of subject matter jurisdiction under Rule
3(a) of the Tennessee Rules of Appellate Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Dismissed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.
John S. Golwen and Kristen Wright, Memphis, Tennessee, for the appellant, W. Robert Vance, Jr.,
d/b/a Moriah Properties.
Blanchard E. Tual , Eric E. Hudson, and Ben Scott, Memphis, Tennessee, for the appellees, Robert
C. McEwan, M.D., Dane Flippin, M.D. and Edward Caldwell, M.D., d/b/a Park Manor Clinic, and
Patrick Lloyd.
MEMORANDUM OPINION1
Factual Background and Procedural History
This case arises from a lease for space in a building owned by Plaintiff W. Robert Vance,
Jr. (“Plaintiff”). Defendants, Doctors Robert C. McEwan, Dane Flippen, and Edward Caldwell
(hereafter referred to as “the Defendants,” or referenced by last name) leased space from Plaintiff
from October 1, 2000, through September 30, 2003, for the purpose of operating a family
medical practice. In the late summer of 2002, Plaintiff and the Defendants began engaging in
discussions relating to the renewal of the lease and the Defendants informed Plaintiff that Patrick
N. Lloyd (“Mr. Lloyd”) had authority to negotiate potential new lease terms on their behalf. In a
letter dated August 5, 2002, Mr. Lloyd informed Plaintiff that
[w]hile the [Defendants] have indicated a desire to remain in their current office,
there are several concerns. They are:
• Parking
• Access
• Security
• Cost per square foot
• Area demographics
• Condition of office
• Space needs
These items need to be addressed in short order relative to any new lease. The
space cost along with some allowances for tenant improvements must become
clear and be market competitive. I am enclosing a comparison of the current
space to another space of interest to the doctors. As you can see, the landlord is
making allowances for improvements here and the rental rate is lower than your
rate. I would suggest that you use this to work up your proposal.
(Emphasis added).
In relation to their need for expansion, the Defendants expressed an interest in possibly
acquiring additional office space on the second floor of the building. At the time of these
negotiations, Memphis Counseling Center (“MCC”) occupied the second floor space and had
subleased a portion of it to Betty McWillie (“Ms. McWillie”), who did business under the name
of “Career Directions”. However, in response to the Defendants’ desire to potentially expand,
Plaintiff “advised [Mr.] Lloyd that he would be willing to discuss with the upstairs tenant the
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential value.
W hen a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall
not be published, and shall not be cited or relied on for any reason in any unrelated case.
-2-
possibility of vacating the space to accommodate [the Defendants].” On October 31, 2002, Mr.
Lloyd confirmed to Plaintiff via letter that the Defendants were exploring the need for additional
space on the second floor and further stated that “[t]he [Defendants] would be receptive to
signing a 5-year lease (including additional space on the second floor) at a rental rate of $21.50
per square foot with an expense cap of $10 per square foot. In addition, they would like the
improvement allowance increased to $25,000.”
On November 18, 2002, Plaintiff sent the Defendants a letter informing them that MCC
had preliminarily agreed to vacate 500 square feet of space on the second floor sometime in early
2003. In this same letter, Plaintiff also proposed two potential lease scenarios to the Defendants
with each incorporating the upstairs space. As summarized in Plaintiff’s Statement of
Undisputed Facts and agreed to by the Defendants “‘Scenario #1’ included rent of the existing
downstairs[] space at $21.50 per square foot; rent of the additional upstairs space of 500 square
feet at $21.50 per square foot, improvement allowance of $25,000; and expense cap for all space
for $7.00 per square foot; and, a 5-year lease term.” At the time they received the November 18
letter, the Defendants had already begun looking at alternative office space located at 756
Ridgelake Boulevard. The parties dispute whether the Defendants informed Plaintiff as to their
interest in this alternate office space. However, this Court does take notice of the fact that the
Defendants did communicate to Plaintiff in their August 5 correspondence that they were
interested in office space located elsewhere.
On December 11, 2002, Mr. Lloyd responded by letter to Plaintiff’s November 18 offer
and stated:
I met with [the Defendants] on Monday to discuss your letter of November 18
regarding their lease space at 950 Mt. Moriah Rd. After discussion, [the
Defendants] concluded that they would like to execute a lease based on Scenario
#1 with the exception of increasing the expense cap to $10.00 [per square foot].
Given this change, they are prepared to execute a lease including the additional
space for a five-year term.
Plaintiff subsequently met with Dr. McEwan on December 13, 2002, to discuss the expense cap
in the proposed lease, and ultimately agreed to an expense cap of $9 per square foot. Mr. Lloyd
later memorialized the agreement between Plaintiff and Dr. McEwan in a December 16, 2005,
letter to Plaintiff stating: “It is my understanding after talking with Dr. McEwan that you have
agreed to increase the expense cap in Scenario #1 to $9.00. As Dr. McEwan stated, this will be
acceptable subject to final approval of the lease document.”
Plaintiff subsequently sent Mr. Lloyd a proposed lease agreement and regulations for the
Park Manor Clinic on December 23, 2002, along with a cover letter noting that the terms of the
proposed lease were “as agreed to by Dr. McEwan and confirmed by [Mr. Lloyd’s] letter dated
December 16, 2002.” Mr. Lloyd responded by sending Plaintiff a letter on December 31, 2002,
requesting eight modifications to the proposed lease. On January 8, 2003, Plaintiff sent a second
-3-
draft of the proposed agreement incorporating some of Mr. Lloyd’s proposed changes. After
receiving no response from either Mr. Lloyd or the Defendants, Plaintiff advised the Defendants
on January 15, 2003, that a lease needed to be executed promptly since the upstairs tenant, who
was in the process of moving out, was expressing doubts as to her decision to give up the space.2
On January 17, 2003, Mr. Lloyd responded with a letter stating:
I am in receipt of your letter dated January 15 regarding the [lease for 950 Mt.
Moriah Rd.]. As an update, the [Defendants] are continuing to discuss the lease
and examine their options. You mentioned in your letter that the sub-tenant is
expressing some doubts about giving up their space. In that event, the
[Defendants] recommend that you not miss an opportunity to lease and to proceed
with leasing if the opportunity exists.
It is my estimate that the [Defendants] will conclude their due diligence soon.
However, the decision has been delayed due to a new development of adding a
fourth physician to the practice. I assure you that we will not prolong this.
On March 5, 2003, Plaintiff sent the Defendants a revised lease proposing new terms
which were more favorable to the Defendants. Five days later, Plaintiff sent the Defendants
another revised lease proposing additional favorable terms. After receiving no affirmative
response from the Defendants, Plaintiff sent another revised lease on April 10, 2003,
incorporating all eight changes requested by Mr. Lloyd in his December 31, 2002, letter.
However, the Defendants subsequently refused to execute a new lease with Plaintiff and
ultimately moved their practice in June 2003 to office space located at 756 Ridgelake Boulevard.
As a result, Plaintiff filed suit against the Defendants in the Chancery Court of Shelby County on
June 9, 2003, asserting causes of action for: (1) breach of agreement to enter into a lease
agreement; (2) breach of lease agreement; (3) detrimental reliance; (4) fraud and
misrepresentation; and (5) negligent misrepresentation.
Prior to trial, Plaintiff moved for summary judgment for all claims asserted in his
complaint. The trial court denied Plaintiff’s motion and the case went to trial on July 28, 2004.
At trial, in an effort to streamline the issues and proof at trial, the chancellor requested that the
parties advise him of all facts in dispute. The parties eventually agreed to submit the case on 21
stipulated exhibits, the parties trial briefs, and testimony concerning whether the December 13,
2002, meeting between Dr. McEwan and Plaintiff resolved all material issues regarding the
formation of a lease contract. After reviewing the evidence, the chancellor issued a letter ruling
on August 16, 2004, stating:
2
In an Affidavit, Ms. McW illie stated that she was first approached about vacating her sub-leased office space
on or about October 23, 2002. Ms. McW illie also stated that she considered her move from the upstairs space complete
on December 13, 2002, when her DSL lines were moved. However, her “physical move” was not complete until
sometime in January 2003. Ms. McW illie further acknowledged in her affidavit that, on January 15, 2003, she informed
Plaintiff that she was questioning her decision to move out of her prior office space.
-4-
After a trial on the merits, this Court took the matter of Vance v. McEwan, et al.
under advisement. After careful consideration and review, I find that the Plaintiff
did not carry his burden of proving that the parties had a meeting of the minds on
all material elements of the alleged contract.
Therefore, I render judgment in favor of the Defendants with costs assessed to the
Plaintiff. The parties are advised that this letter also serves as the Chancellor’s
Findings of Fact and Conclusions of Law. The attorneys should present this Court
with a Final Decree consistent with this letter opinion.
The trial court subsequently entered a Final Decree on September 7, 2004, stating:
THIS CAUSE came on to be heard for trial before the Court on the 28th
day of July, 2004, wherein the Court took the matter under advisement. After
careful consideration and review, the Court finds that the Plaintiff did not carry
his burden of proving that the parties had a meeting of the minds on all material
elements of the alleged contract.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
judgment is hereby rendered in favor of the Defendants with costs assessed to the
Plaintiff, for which execution may issue, if necessary.
After the trial court’s ruling, Plaintiff filed a Motion for New Trial or, in the Alternative,
to Alter or Amend Judgment and/or to Make Additional Findings of Fact Pursuant to Tennessee
Rules of Civil Procedure 59.02, 59.04, and 52.02. In this motion, Plaintiff argued that the trial
court erroneously ruled on Plaintiff’s contract claims and failed to address or rule on Plaintiff’s
other causes of action, such as detrimental reliance, fraud and misrepresentation, and negligent
misrepresentation. The trial court denied Plaintiff’s motion. Plaintiff appeals. Because we find
that the trial court failed to enter a final decree in this matter, we dismiss this appeal for lack of
subject matter jurisdiction.
Analysis
Although neither party in this case raises the issue of whether this Court has jurisdiction
to hear this appeal, we may nonetheless consider the issue of subject matter jurisdiction pursuant
to Tenn. R. App. P. 13(b), which states that “[t]he appellate court shall also consider whether the
trial and appellate court have jurisdiction over the subject matter, whether or not presented for
review . . . .”
Rule 3 of the Tennessee Rules of Appellate Procedure provides as follows:
(a) Availability of Appeal as of Right in Civil Actions. In civil actions every final judgment ent
Supreme Court or Court of Appeals is appealable as of right. Except as otherwise permitted in
-5-
rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure, if multiple parties or multiple
claims for relief are involved in an action, any order that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties is not enforceable or appealable and is
subject to revision at any time before entry of a final judgment adjudicating all the claims, rights,
and liabilities of all the parties.
Rule 54.02 of the Tennessee Rules of Civil Procedure deals with the entry of final
judgment when multiple claims are asserted within a case, and provides as follows:
When more than one claim for relief is present in an action, whether as a claim,
counterclaim, cross-claim, or third party claim, or when multiple parties are
involved, the Court, whether at law or in equity, may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for delay and upon an express
direction for the entry of judgment. In the absence of such determination and
direction, any order or other form of decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any time before the entry
of the judgment adjudicating all the claims and the rights and liabilities of all the
parties.
As recognized by the Tennessee Supreme Court in Fox v. Fox 657 S.W.2d 747 (Tenn. 1983),
Rule 54.02 requires as an absolute prerequisite to an appeal the certification by the
trial judge, first, that the court has directed the entry of a final judgment as to one
or more but fewer than all of the claims, and, second, make an express
determination that there is no just reason for delay. Such certification by the trial
judge creates a final judgement appealable as of right under Rule 3 T.R.A.P. In
the absence of such direction and determination by the trial judge, the order is
interlocutory and can be revised at any time before the entry of judgment
adjudicating all the claims and right and liabilities of all the parties.
Id. at 749.
In the case at bar, the record shows that Plaintiff asserted five causes of action in his
initial complaint: (1) breach of agreement to enter into a lease agreement; (2) breach of lease
agreement; (3) detrimental reliance; (4) fraud and misrepresentation; and (5) negligent
misrepresentation. However, at the conclusion of the trial in this case, the trial court entered
judgment only as to Plaintiff’s contractual claims and failed to either rule on or otherwise dispose
of Plaintiff’s remaining three causes of action. Furthermore, the record shows that the trial judge
did not certify that he was entering final judgment as to fewer than all of Plaintiff’s claims and
also failed to make an express determination that no just reason for delay existed for appeal upon
-6-
his ruling concerning Plaintiff’s contract claims. Therefore, since the prerequisites of neither
Rule 3 of the Tennessee Rules of Civil Procedure nor Rule 54.02 of the Tennessee Rules of
Appellate Procedure have been met, and since Plaintiff has not sought an interlocutory appeal as
allowed for under Rule 9 of the Tennessee Rules of Appellate Procedure, we hereby dismiss
Plaintiff’s appeal for lack of subject matter jurisdiction. Costs of this appeal are taxed to
Appellant, W. Robert Vance, Jr., and his surety for which execution may issue if necessary.
___________________________________
DAVID R. FARMER, JUDGE
-7-
| {
"pile_set_name": "FreeLaw"
} |
[Cite as In re Schwarz, ___ Ohio St.3d ___, 2019-Ohio-972.]
IN RE SCHWARZ.
[Cite as In re Schwarz, ___ Ohio St.3d ___, 2019-Ohio-972.]
(No. 2019-0405—Submitted March 19, 2019—Decided March 22, 2019.)
ON CERTIFIED ENTRY OF FELONY CONVICTION.
____________________
{¶ 1} On March 19, 2019, and pursuant to Gov.Bar R. V(18), the director
of the Board of Professional Conduct filed with the Supreme Court a certified
copy of a judgment entry of a felony conviction against Harold McClure Schwarz
III, an attorney licensed to practice law in the state of Ohio.
{¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(18)(A)(4),
it is ordered and decreed that Harold McClure Schwarz III, Attorney Registration
No. 0078072, last known business address in Akron, Ohio, is suspended from the
practice of law for an interim period, effective as of the date of this entry.
{¶ 3} It is further ordered that this matter is referred to disciplinary
counsel for investigation and the commencement of disciplinary proceedings.
{¶ 4} It is further ordered that respondent immediately cease and desist
from the practice of law in any form and that respondent is forbidden to appear on
behalf of another before any court, judge, commission, board, administrative
agency, or other public authority.
{¶ 5} It is further ordered that effective immediately, respondent is
forbidden to counsel, advise, or prepare legal instruments for others or in any
manner perform legal services for others.
{¶ 6} It is further ordered that respondent is divested of each, any, and all
of the rights, privileges, and prerogatives customarily accorded to a member in
good standing of the legal profession of Ohio.
SUPREME COURT OF OHIO
{¶ 7} It is further ordered that before entering into an employment,
contractual, or consulting relationship with any attorney or law firm, respondent
shall verify that the attorney or law firm has complied with the registration
requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R.
V(23), respondent shall refrain from direct client contact except as provided in
Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling
any client trust funds or property.
{¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent
shall complete one credit hour of continuing legal education for each month, or
portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(13), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the
suspension.
{¶ 9} It is further ordered that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this
court, (3) respondent complies with the Supreme Court Rules for the Government
of the Bar of Ohio, and (4) this court orders respondent reinstated.
{¶ 10} It is further ordered by the court that within 90 days of the date of
this order, respondent shall reimburse any amounts that have been awarded by the
Lawyers’ Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered by the court that if after the date of this order, the Lawyers’ Fund
for Client Protection awards any amount against respondent pursuant to Gov.Bar
R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers’ Fund for
Client Protection within 90 days of the notice of that award.
2
January Term, 2019
{¶ 11} It is further ordered that on or before 30 days from the date of this
order, respondent shall do the following:
{¶ 12} 1. Notify all clients being represented in pending matters and any
co-counsel of respondent’s suspension and consequent disqualification to act as
an attorney after the effective date of this order and, in the absence of co-counsel,
also notify the clients to seek legal services elsewhere, calling attention to any
urgency in seeking the substitution of another attorney in respondent’s place;
{¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients
being represented in pending matters any papers or other property pertaining to
the client or notify the clients or co-counsel, if any, of a suitable time and place
where the papers or other property may be obtained, calling attention to any
urgency for obtaining such papers or other property;
{¶ 14} 3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid and account for any trust money or property in respondent’s
possession or control;
{¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the
adverse parties in pending litigation of respondent’s disqualification to act as an
attorney after the effective date of this order and file a notice of disqualification of
respondent with the court or agency before which the litigation is pending for
inclusion in the respective file or files;
{¶ 16} 5. Send all notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;
{¶ 17} 6. File with the clerk of this court and disciplinary counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of the notices required herein, and setting forth the address where the
affiant may receive communications; and
{¶ 18} 7. Retain and maintain a record of the various steps taken by
respondent pursuant to this order.
3
SUPREME COURT OF OHIO
{¶ 19} It is further ordered that respondent shall keep the clerk and
disciplinary counsel advised of any change of address where respondent may
receive communications.
{¶ 20} It is further ordered that all documents filed with this court in this
case shall meet the filing requirements set forth in the Rules of Practice of the
Supreme Court of Ohio, including requirements as to form, number, and
timeliness of filings. All case documents are subject to Sup.R. 44 through 47,
which govern access to court records.
{¶ 21} It is further ordered that service shall be deemed made on
respondent by sending this order, and all other orders in this case, to respondent’s
last known address.
{¶ 22} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be
made as provided for in Gov.Bar R. V(17)(D)(2).
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
________________________
4
| {
"pile_set_name": "FreeLaw"
} |
21 B.R. 217 (1982)
In re Carl JOHNSON a/k/a Carl W. Johnson, Debtor.
Bankruptcy No. 81-00592.
United States Bankruptcy Court, District of Columbia.
June 24, 1982.
Michael E. Brand, Miller, Loewinger & Associates, Washington, D.C., for debtor.
MEMORANDUM OPINION
(Motion to Amend Order Appointing Counsel and for Interim Compensation)
ROGER M. WHELAN, Bankruptcy Judge.
The pending Motion to Amend Order Appointing Counsel and for Interim Compensation *218 was filed by the law firm of Miller, Loewinger and Associates, Chartered, as counsel for the debtor in possession and by such motion they seek to correct a prior order of this Court entered on May 27, 1982, authorizing their retention as attorneys for the debtor in possession in this Chapter 11 case. However, the original Chapter 11 case was initiated by the filing of a petition on October 21, 1981, and the attorneys now seek to have the order of May 27, 1982 entered on a nunc pro tunc basis in order to provide for attorneys' services rendered from the initiation of the case in October 1981. A review of the motion essentially sets forth as a factual predicate for the granting of relief, nunc pro tunc, their "mistaken impression that specific appointment of counsel need not be obtained substantially in advance of the filing of a petition for interim compensation." The record before this Court clearly reflects that no order authorizing retention of counsel was ever signed until May 27, 1982, when attorneys for the debtor in possession then filed their application for retention pursuant to the requirements of Section 327 of the Code.
The facts as presented reflect, with reference to the filed application for interim compensation, that counsel rendered substantial services in the pending Chapter 11 case and yet no steps were admittedly taken to secure court approval for retention of counsel. This is certainly a regrettable situation but the mandate of the Bankruptcy Code is clear in requiring court approval for retention of all "professional persons." 11 U.S.C. § 327 specifically mandates that employment of all professional persons be with "court approval." With reference to the filing of a Chapter 11 case, it is important to bear in mind that a new entity, the debtor in possession, emerges upon the filing of the petition and accordingly retention of attorneys for the debtor in possession is mandated in view of the fact that Section 327 is clearly applicable. See 11 U.S.C. § 1107(a) and § 1101. Before professional services can be rendered for the benefit of the debtor in possession in a pending Chapter 11 case, the Code clearly requires Court approval in order to ensure that only "disinterested" persons provide such services in a competent way. This is particularly true of attorney representation because counsel for the debtor must also comply with the requirements of Section 329 and Bankruptcy Rule 219 where applicable.[1] Ignorance of these important and crucial provisions is certainly not an excuse to the attorney, nor does it provide a sufficient legal basis for this Court to enter an order on a nunc pro tunc basis. Accordingly, where the attorney has not timely filed his application for retention as counsel for the debtor in possession, denial of services prior to the entry of such order is entirely proper. In In re Progress Lektro Shave Corporation, 117 F.2d 602, 604 (2d Cir. 1941), the Court stated:
"There is no question but that the appellant acted throughout in good faith and a denial to him of compensation is a harsh conclusion. However, the law is unquestionably settled that the order of the district court was correct."
See also In re Rogers-Pyatt Shellac Co., 51 F.2d 988, 991 (2d Cir. 1931).
In this situation the services for which compensation is being requested on an interim basis were clearly services rendered without court approval. While nunc pro tunc applications in certain extraordinary situations may be warranted, the facts as stated in the pending motion do not compel, or in any way constitute sufficient justification for the entry of a nunc pro tunc order. Accordingly, for the reasons stated, the motion requesting such relief is denied.[2]
NOTES
[1] Of course, it is clear that no order is required for the retention of counsel to the debtor in the pre-petition period, and, accordingly, all services rendered prior to the filing of the Chapter 11 case can be compensated to the extent that the Court finds that such fees are fair and reasonable within the meaning of the Code. See 11 U.S.C. § 330(a)(1).
[2] To the extent that legitimate and necessary expenses have been incurred by counsel in connection with the pending Chapter 11 case since the filing of the case on October 21, 1981, the Court will award payment of such expenses after the attorneys submit an itemized list and documentation as to the amount.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41281
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JAIME GARCIA-SANCHEZ,
true name Gumaro Hernandez-Mar
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(5:04-CR-767)
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Garcia-Sanchez appeals his 30-month sentence for being
an alien who was unlawfully found in the United States after
deportation, in violation of 8 U.S.C. § 1326(a) and (b). Garcia
challenges that constitutionality of § 1326(b)’s treatment of prior
felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be alleged in the
indictment and found by a jury, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Garcia’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
*
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.
(1998). Although Garcia contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule it in light of Apprendi, we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding. See
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2000). Garcia properly concedes that his
argument is foreclosed, but he raises it here to preserve for
further review. Accordingly, Garcia’s conviction is affirmed.
Garcia also contends that his sentence must be vacated and his
case remanded for resentencing because the district court erred by
sentencing him under a mandatory Sentencing Guidelines regime, in
light of United States v. Booker, 543 U.S. 220 (2005). Garcia
preserved this contention at the district court; thus, the
government must prove beyond a reasonable doubt that the district
court would have imposed the same sentence had the Guidelines been
advisory. See United States v. Walters, 418 F.3d 461, 463-64 (5th
Cir. 2005). Here, the sentencing transcript is silent with regard
to whether the district court would have imposed the same sentence
had the Guidelines been advisory. As such, the government cannot
show that the error was harmless beyond a reasonable doubt.
Accordingly, we REMAND to the district court to allow the
district court to resentence Garcia-Sanchez if, in its discretion
under the now-advisory Guidelines, it chooses to do so.
2
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
3
| {
"pile_set_name": "FreeLaw"
} |
445 Pa. 217 (1971)
Landau et al., Appellants,
v.
Western Pennsylvania National Bank.
Western Pennsylvania National Bank
v.
Carroll et al., Appellants.
Supreme Court of Pennsylvania.
Argued March 22, 1971.
October 12, 1971.
*218 Before BELL, C.J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
*219 Thomas H. Welsh and Myron B. Markel, with them Metz, Cook, Hanna & Kelly, and Markel, Markel, Levenson & Schafer, for appellants.
Robert G. Sable, with him Robert N. Hackett, and Baskin, Boreman, Wilner, Sachs, Gondelman and Craig, for appellee.
OPINION BY MR. JUSTICE ROBERTS, October 12, 1971:
On July 24, 1970, the Western Pennsylvania National Bank instituted mortgage foreclosure proceedings against Robert Carroll and Dan Jennings. Shortly thereafter, Western Pennsylvania and the Kroger Company, lessee of the mortgaged premises, entered into a subordination and attornment agreement whereby the former agreed to subordinate its prior mortgage to the latter's lease. On August 13, 1970, Walter Landau, Thomas Landau, Calvin Landau, Sr., and Calvin Landau, Jr., holders of a junior lien upon the mortgaged property by virtue of a recorded judgment note, filed a complaint in equity seeking to set aside the subordination and attornment agreement on the theory that it unlawfully prejudiced their rights as junior lienors.
The mortgage foreclosure suit and related equity action were consolidated for trial in the Court of Common Pleas of Allegheny County, and Western Pennsylvania moved for summary judgment in each case pursuant to Pa. R.C.P. 1035. The motion was granted by the court en banc, and this consolidated appeal followed. For reasons which follow, we affirm the summary judgments of the court en banc.
The pleadings establish the following facts:
On July 18, 1966, the Bally Castle Corporation conveyed certain property in Ross Township, Allegheny County, to appellants Carroll and Jennings, who planned to erect and maintain a building containing *220 a supermarket and offices. The deed was executed by Jennings in his capacity as corporate secretary of Bally Castle. On July 19, Carroll and Jennings mortgaged the same property to appellee Western Pennsylvania National Bank to secure a $540,000 loan. At the same time, one Robert Jarvis subordinated his prior mortgage upon a portion of the premises to the Western Pennsylvania mortgage. Both the Western Pennsylvania mortgage and the Jarvis subordination were duly recorded on July 20, 1966.
On August 5 and 9, 1966, Bally Castle leased the major portion of the property in question to the Kroger Company. These leases were also signed by Jennings as secretary of Bally Castle, and each contained a provision that the lessor would deliver to the lessee appropriate agreements subordinating to the lease any mortgage on the demised premises recorded prior to the leases. The Kroger leases were recorded on August 11, 1966, and August 16, 1966, respectively, and Kroger has at all times since been tenant in possession of the supermarket.
On November 22, 1967, more than one year after the execution of the Kroger leases, Jennings, Carroll, Carroll's wife, the Eyrecourt Corporation and Bally Castle executed a judgment note to the Landau Brothers Building Company in the face amount of $194,789.85. Landau Brothers Building Company subsequently assigned the note to appellants Walter Landau, Thomas Landau, Calvin Landau, Sr., and Calvin Landau, Jr., as cotenants trading and doing business as the Whitehall Terrace Company. The judgment note as so assigned was recorded on December 11, 1967.
Carroll and Jennings defaulted under the terms of the Western Pennsylvania mortgage in 1967, and the instant controversy was thus precipitated.
To summarize, the relevant documents appear of record in the following chronology:
*221
Date
Document Recorded
Deed Bally Castle Corp. to Carroll
and Jennings July 20, 1966
Mortgage Carroll and Jennings to
Western Pennsylvania National
Bank July 20, 1966
Subordination Jarvis mortgage to
Western Pennsylvania National
Bank mortgage July 20, 1966
Lease Bally Castle Corp. to Kroger August 11, 1966
Lease Bally Castle Corp. to Kroger August 16, 1966
Judgment Note Carroll and Jennings
to Landau Brothers
Building Company December 6, 1967
Assignment of Judgment Note
Landau Brothers Building Company
to the Landaus, t/b/d/a
Whitehall Terrace Company December 11, 1967
Mortgage Foreclosure Action
Western Pennsylvania National
Bank vs. Carroll and Jennings July 24, 1970
Subordination Western Pennsylvania
National Bank to Kroger
lease August 4, 1970
Equity Action Landaus vs. Western
Pennsylvania National Bank
and Kroger August 13, 1970
Its mortgage being first in time, Western Pennsylvania was not legally bound by the provision in the Kroger lease that any prior mortgages be subordinated to the lease. Had it so elected, Western Pennsylvania could have abrogated the lease by foreclosure on the mortgage, and the property would have been sold at *222 sheriff's sale unencumbered by the lease. Fogarty v. Mount Carmel Transit Co., 367 Pa. 447, 451, 80 A. 2d 727, 729 (1951); see also Trickett, The Law of Landlord and Tenant in Pennsylvania § 470 (Stern ed. 1969); 5 Tiffany, Real Property § 1422 (3d ed. 1939). Western Pennsylvania chose otherwise, however, and by virtue of its subordination and attornment agreement with Kroger, any sheriff's sale purchaser would take the property subject to the lease. Harp Building & Loan Association v. Davis, 56 Pa. Superior Ct. 282 (1914).
The foregoing legal principles are crucial to the respective positions of the parties in this appeal. The Landaus as junior lienors and Carroll and Jennings as mortgagors contend that the rent presently paid by Kroger under the terms of its existing lease does not reflect the fair market value of the leasehold and that the subordination and attornment agreement thus substantially reduces the value of the property at a sheriff's sale to the financial detriment of the mortgagors and the holders of junior liens. It is further contended that the subordination was part of a fraud and conspiracy designed to chill bidding at the sheriff's sale. Western Pennsylvania for its part denies any fraud or conspiracy and asserts that its decision to subordinate its mortgage to the Kroger lease was designed not to reduce the value of the property but, on the contrary, to enhance and protect its own security interest.
Although the instant case presents a somewhat novel fact situation and our research has failed to disclose any cases directly in point, we believe that appellants' claims are clearly devoid of merit.
Appeal of Carroll and Jennings
In assessing the contentions of the mortgagor-appellants, it is to be noted initially that the subordination *223 and attornment agreement was in itself an entirely legal act. As stated in Harp Building & Loan Association v. Davis, 56 Pa. Superior Ct. 282 (1914): "The authority to release part of mortgaged premises from the lien of the mortgage is recognized by statute, and the release of premises or part of premises from the lien of a judgment is a common practice. No conceivable principle of public policy forbids the extension of this right to a leasehold term in the property. As Chief Justice GIBSON said, in Berger v. Hiester, 6 Wharton, 210: `It is a maxim that anyone may renounce the benefit of a privilege provided for himself.'" Id. at 285.
There are of course certain well defined duties owing from a mortgagee to his mortgagor. A mortgagee in possession must account for rents and profits, Winthrop v. Arthur W. Binns, Inc., 160 Pa. Superior Ct. 214, 50 A. 2d 718 (1947), must maintain the mortgaged premises in good condition to prevent its deterioration, Sansotta v. City of Pittsburgh, 330 Pa. 199, 199 Atl. 164 (1938), and is liable for waste, Elliott v. Moffett, 365 Pa. 247, 74 A. 2d 164 (1950). However, none of these duties or any analogous duty was breached by Western Pennsylvania's subordination of its mortgage to the Kroger lease.
As set out above, the lease agreement with Kroger was executed by the Bally Castle Corporation as lessor, and the record does not reveal whether or not Bally Castle and Carroll and Jennings are legally synonymous. It is certain, however, that Jennings personally signed the lease as secretary of Bally Castle, and Kroger has been at all relevant times tenant in possession. Furthermore, in their answer to Western Pennsylvania's mortgage foreclosure complaint, Carroll and Jennings virtually admitted their status as Kroger's landlord, alleging: "10. Western Pennsylvania National *224 Bank has sequestered the rents payable from tenants occupying the building on the property subject to mortgage foreclosure since May 1, 1970, and Defendants demand an accounting of all payments and the application of said payments that have occurred since that time and demand that any rental payments should constitute a reduction of the mortgage balance or interest thereon." These facts taken together clearly demonstrate that Carroll and Jennings (a) are Kroger's actual landlord or (b) have at least ratified the lease by knowingly recognizing Kroger's tenancy on the mortgaged premises.
That being the case, we agree with the court en banc that Carroll and Jennings certainly cannot be heard to complain about Western Pennsylvania's voluntary subordination to a lease which they themselves either negotiated or ratified and to which they themselves were legally bound. While a mortgagee in possession might in certain circumstances be under a duty not to let a readily marketable leasehold lie dormant and financially unproductive, cf. Artisans Order v. Superb Realty Co., 353 Pa. 256, 258-59, 44 A. 2d 584, 585 (1945), we perceive no reason why a mortgagee should not be altogether free to fulfill, albeit voluntarily, his mortgagor's legal duty to an existing lessee.
We likewise agree with the court en banc that Carroll and Jennings have not sufficiently pleaded an unlawful conspiracy between Western Pennsylvania and Kroger. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Fife v. Great Atlantic and Pacific Tea Co., 356 Pa. 265, 52 A. 2d 24 (1947); Bausbach v. Reiff, 244 Pa. 559, 91 Atl. 224 (1914). As noted above, Western Pennsylvania's subordination and attornment agreement was in itself a completely lawful act. Hence, conspiracy *225 in the present case could be predicated only upon an unlawful means or purpose. However, the only allegation of conspiracy appears in the very last paragraph of Carroll's and Jennings' answer to the mortgage foreclosure complaint and reads as follows: "18. Plaintiff has conspired with the Kroger Co. to limit the value of the subject property at foreclosure and by doing so has adversely affected Defendant's rights."
Pa. R.C.P. 1019(a) directs that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." The purpose of the rule is to require the pleader to disclose the "material facts" sufficient to enable the adverse party to prepare his case. Smith v. Allegheny County, 397 Pa. 404, 155 A. 2d 615 (1959); 2A Anderson, Pennsylvania Civil Practice § 1019.1 (1969); 3 Standard Pennsylvania Practice § 31 (1952); cf. Roberts v. Peoples Cab Co., 7 Pa. D. & C. 2d 632 (1955). In the instant case, the single, vague and conclusory allegation that the mortgagee and lessee have "conspired" to the detriment of the mortgagors falls far short of the requisite pleadings of "the material facts."
Summary judgment was entered in Western Pennsylvania's favor in the mortgage foreclosure action in the amount of $567,000 plus interest from March 1, 1970. This sum represents the $540,000 face amount of the mortgage together with $27,000 for attorney's commissions at the rate of 5%. Carroll and Jennings never admitted this amount of indebtedness in their pleadings, and they presently contend that summary judgment was improper inasmuch as there existed a genuine issue as to damages. This argument is groundless. It is admitted that the mortgage is in default, that the mortgagors have failed to pay interest on the obligation since March 1, 1967, and that the recorded *226 mortgage is in the amount of $540,000.[*] In these circumstances, the amount of the summary judgment was entirely proper.
Carroll and Jennings did interpose a counterclaim for $779,483.42 plus interest. This counterclaim, however, was based solely upon the alleged illegality of the Western Pennsylvania subordination agreement, and, as we have already concluded, this agreement was not actionable. Nor does Western Pennsylvania's admitted sequestration of Kroger's rent from May 1, 1970, raise any genuine issue as to the amount of damages to be awarded in the mortgage foreclosure action. The debt owed on the mortgage changed and can be expected to change from day to day, because Western Pennsylvania is mortgagee in possession, collecting rents and paying expenses in that capacity. The mortgagors are unquestionably entitled to an accounting, but that accounting is not due until the property is sold at sheriff's sale and distribution of the proceeds is made. Judgment in a mortgage foreclosure action must be entered for a sum certain or no execution could ever issue on it.
Appeal of the Landaus
The claims of the Landaus respecting the Western Pennsylvania-Kroger subordination and attornment agreement are largely similar to those made by the mortgagors and may be easily dismissed, for much of our previous discussion is equally applicable in the Landaus' appeal.
The Landaus as judgment creditors stood in the shoes of their debtors, Carroll and Jennings, and did not acquire any rights in the subject property greater *227 than those possessed by Carroll and Jennings. See Miners Savings Bank v. Thomas, 140 Pa. Superior Ct. 5, 12 A. 2d 810 (1940) (opinion by KELLER, P.J.). As Carroll and Jennings do not possess any legally cognizable right to be compensated for the Western Pennsylvania subordination agreement, the Landaus, claiming through Carroll and Jennings, have no right to vitiate the agreement.
Furthermore, the Landaus' position is devoid of equity. Had there been no mortgage, it is clear that the Landaus' judgment lien would have been subordinate to the Kroger lease. In effect, they are now asking a court of equity to require the paramount lienor (Western Pennsylvania) to forego its own business judgment and exercise its right to abrogate the Kroger lease, thereby altering the priorities which would otherwise exist and elevating their junior judgment lien above the lease. Neither the court below nor this Court has been furnished with any reason why they deserve such a windfall.
The Landaus' lien priority was not adversely affected by the subordination and attornment agreement, and the Kroger lease, which should have alerted any junior lienor to the possibility of such a subordination, was recorded more than one year before the execution of the judgment note. The release of a portion of mortgaged premises from the lien of the mortgage is and has been for many years a "common practice" in the financial world. See Harp Building & Loan Association, supra. There is no reason for equity to restrain such a release in the instant case.
In a manner similar to that attempted by appellants Carroll and Jennings, the Landaus seek to cast a pall of suspicion over the otherwise innocent and lawful subordination and attornment agreement by alleging that the agreement was part of a conspiracy and fraud. In *228 paragraph 22 of their complaint in equity, they allege that Western Pennsylvania and Kroger, "acting in concert together, contrived, connived and conspired unjustifiably" to reduce the value of their judgment lien and to interfere as well with the rights of other creditors, and paragraph 25 of the complaint reads as follows: "That the action by and between both Defendants in the execution and filing of the subordination and attornment agreement on August 4, 1970 amounts, Plaintiffs believe and therefore aver, to a fraud upon Plaintiffs and all other lien creditors upon the premises."
The allegation of the conspiracy suffers from the same defect as the conspiracy allegation of appellants Carroll and Jennings in that it fails to recite the material facts upon which the conspiracy claim is based, see Pa. R.C.P. 1019(a), and the conclusory allegation of fraud is insufficient a fortiori, for Pa. R.C.P. 1019(b) additionally provides that "[a]verments of fraud or mistake shall be averred with particularity." See Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A. 2d 174 (1966); Anderson, supra, § 1019.18. Accordingly, the court en banc did not err in granting summary judgment in the face of such bald and unsupported allegations of conspiracy and fraud.
The decree of the Court of Common Pleas of Allegheny County granting summary judgments is affirmed. Each party to pay own costs.
NOTES
[*] See paragraphs 7 and 8 of the Complaint in Mortgage Foreclosure and paragraphs 11 and 18 of the Answer, New Matter, and Counterclaim.
| {
"pile_set_name": "FreeLaw"
} |
33 F.3d 50
U.S.v.Viola
NO. 93-1272
United States Court of Appeals,Second Circuit.
July 28, 1994
1
Appeal From: E.D.N.Y.
2
AFFIRMED AND REVERSED.
| {
"pile_set_name": "FreeLaw"
} |
820 F.2d 1225
Southersv.Gardner
85-5653
United States Court of Appeals,Sixth Circuit.
6/16/87
1
E.D.Tenn.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
480 F.2d 167
Patsy RICCIARDI, Plaintiff-Appellant,v.James R. THOMPSON, etc., et al., Defendants-Appellees.UNITED STATES of America, Petitioner-Appellee,v.Patrick RICCIARDI et al., Respondents-Appellants.UNITED STATES of America, Petitioner-Appellee,v.Sean O'CONNOR and Bijou Theatre, Respondents-Appellants.
Nos. 72-1665, 72-1666 and 72-1677.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 14, 1973.Decided June 25, 1973.
Patrick A. Tuite, Melvin B. Lewis, Chicago, Ill., for plaintiffs-appellants.
James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., John L. Murphy, Donald Feige, Crim.Div., Dept. of Justice, Washington, D. C., for petitioner-appellee.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.
KILEY, Circuit Judge.
1
These appeals, all of which arise out of the government's seizure of allegedly obscene films for use in impending prosecutions of the theater owners for violation of 18 U.S.C. Sec. 1462, present a common challenge to the procedure used to effect the seizures.1 Although the factual situations are somewhat different, each appeal asserts that the district court's issuance of a rule to "show cause" why a search warrant should not be issued and an order compelling the appellants to produce in court the offending films for a hearing into the question of probable cause for the issuance of a search warrant, violated the First, Fourth and Fifth Amendments. Because of the common question this court ordered the appeals consolidated. We shall treat them together for convenience in this opinion. We hold that the district court procedure violated appellants' First Amendment rights and that the district court erred in denying their motions for return of the films.
2
In the Ricciardi appeal No. 72-1666 and in the O'Connor appeal No. 72-1677 the United States Attorney for the Northern District of Illinois on July 24, 1972 petitioned the district court for an "Order to Show Cause" why a search warrant should not be issued for the seizure of specified films and an order to "appear forthwith before this court and then and there produce said films in their present condition . . ." for exhibition before the court. In Ricciardi the order stated that a warrant for the seizure of three films, "Deep Throat," "Vacation in Hot Pants," and "Kiss This Miss" had already been issued. A photocopy of a dated but unsigned warrant was appended to the order, as was an affidavit by an FBI agent which described certain sexually explicit scenes in the films. The agent asserted that the films were obscene and had been unlawfully transported in interstate commerce. The order in O'Connor was accompanied by a similar affidavit and ordered the production of a film entitled "Ranch Slaves" and several untitled "featurettes." The appellants in both cases were ordered to appear on the afternoon of service, and did appear with the specified films.
3
Both Ricciardi and O'Connor (appellants), in response to the show cause order, contended unsuccessfully that the films were protected material under the First Amendment and that the order requiring production violated appellants' privilege against self-incrimination. After denying these motions, the court ordered an "adversary hearing" with the government to present evidence on the question of probable cause. Hearings were held on July 25, 28 and 31, 1972. The only evidence provided was the agent's affidavit attached to the show cause order. Based upon the affidavit, the court found that the government had established a prima facie case and shifted the burden to the appellants.2 The agent did not testify, and the appellants were given no opportunity to cross-examine him on the affidavit until and unless they first consented to have films viewed by the court. Appellants objected to these procedures but ultimately agreed to have the court view the films. The appellants were then permitted to call the agent and cross-examine him.
4
After the agent testified, the court continued the cause, but ordered the appellants to "retain" possession of the films until further order of the court. No restriction was placed upon the appellants' right to exhibit the films. On July 31, 1972 the court held that probable cause existed and ordered the warrant issued and the films seized. Federal agents immediately seized the films.3 The next day appellants moved, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, for the return of the films. The court denied the motion. These appeals followed. The films are still in the possession of the government.
5
Appellants contend, among other things, that they were denied due process because the procedures used by the trial judge lacked sufficient guidelines and rules, denied the protections of the First Amendment by having the burden of proof improperly shifted to them, denied the protections of the Fourth Amendment by the issuance of a warrant on evidence alleged to be insufficient to support a probable cause finding, and denied a fair trial by the improper selection of the trial judge. Because we find that the procedures employed in effecting the seizure and retention of material-which was arguably protected by the First Amendment-were constitutionally infirm, we do not reach all of appellants' contentions.
6
Apparently the government was attempting to invoke the New York statutory procedure sustained in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), when it initiated the show cause proceeding now before us. The State of New York there sought, under the New York obscenity statute, an injunction to restrain the sale of Kingsley's "booklets." Attached to the complaint was a sample of the booklets alleged to be obscene. Based upon the complaint and the sample material the court issued a rule requiring Kingsley to show cause why an injunction should not be issued. Kingsley's prompt response raised the issue of obscenity, and the court, within the time limited by the statute, made a final determination that the books were obscene. That procedure, however, is unworkable in a situation where, as here, the alleged offending material cannot be procured by the government and made available to the court without a seizure.
7
The district court was misled-by the unlawful show cause procedure initiated by the government-into an anomalous proceeding which denied appellants First Amendment rights.
8
Appellant Ricciardi properly characterizes the court's procedure, "the proceedings began with an attempt to seize the films in order to determine whether they might be seized." The trial court, under the misapprehension-caused by the government's unconstitutional procedure-that a prior adversary hearing was a constitutional prerequisite to the issuance of the warrant, attempted to devise an appropriate legal method by which to compel the production of the films for the probable cause determination and at the same time avoid seizure without the obscenity hearing prior to the issuance of the warrant. There was no necessity, however, for the court to avoid the customary ex parte probable cause procedure simply because motion picture films were subject of the proposed search and seizure.
9
The search and seizure sought by the government was for the purpose of prosecution under Sec. 1462. That statute is not an obscenity statute in the sense that various state laws are. There is no federal obscenity statute in that sense. The federal element in Sec. 1462 is the interstate transportation of obscene films. In a prosecution under Sec. 1462, proof of obscenity, absent proof of the unlawful interstate transportation, does not alone support a conviction. The question of obscenity may not even be reached in unsuccessful prosecutions under Sec. 1462.
10
We recognize, however, the difficulty facing district courts in disposing of applications for warrants to search for and seize motion picture films. There is the need of avoiding the Scylla of interfering with the prosecutorial process necessary in enforcement of Sec. 1462; there is the need of avoiding the Charybdis on the other side of undue inhibition of film owners in the exercise of their First Amendment rights. We condemn the show cause procedure used in the cases before us.
11
In future cases, the government shall have 24 hours after seizure of the films in which to copy the alleged offending films and in which to return them to the persons from whom they were seized. If the government needs additional time for copying the films, it must, within the 24 hour period make application to the district court for an extension of time, with notice to the owners. Because of the important First Amendment interests involved, no such extension shall be granted except to a specified hour, after an immediate hearing with respect to a good faith showing which justifies the extension. If the court finds the additional time requested by the government to be unreasonable in light of the restraint being imposed upon the owner's First Amendment right to display the film, it shall order the film returned forthwith. If the extension is granted, the government shall return the property to the persons entitled thereto at the close of the extended period without further delay.
12
The judgments denying plaintiffs' motion under Rule 41(e) are reversed and the causes are remanded with directions to grant the motions and order the films returned to plaintiffs forthwith.
13
Reversed and remanded with directions.
1
18 U.S.C. Sec. 1462 makes it a crime to "knowingly use any express company or other common carrier, for carriage in interstate or foreign commerce . . . any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character. . . ."
2
The affidavit stated that the agent had seen the films in question at the Bijou Theatre and that he believed that they were obscene. To support this conclusion the agent described several sexually explicit scenes involving homosexual activity. In addition, the affidavit stated that the agent had learned that the film "Ranch Slaves" had been shipped by Novo Air-Freight from Hollywood, California to the Bijou Theatre in Chicago shortly before the agent viewed it. However, following the hearing, but prior to the issuance of the warrant, the government amended the affidavit by deleting all reference to the title of the particular film shipped by Novo Air-Freight
3
Pursuant to that warrant, agents searched the Admiral Theatre but did not find the films. Upon return of the unexecuted warrant the government petitioned the court for an order to show cause why Ricciardi should not be held in contempt. Following a hearing, Ricciardi was found in contempt and incarcerated until the films were produced. Shortly thereafter the films were delivered to the prosecutor and Ricciardi was released. Ricciardi immediately filed an action for the return of the films, and their suppression as evidence. The court denied and dismissed this action, holding that the finding made at the time the search warrant issued was res judicata. Ricciardi appealed in No. 72-1665 from the dismissal
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
June 14, 2019
No. 04-19-00134-CV
IN THE INTEREST OF D.R., et al,
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2018PA00445
Honorable Genie Wright, Judge Presiding
ORDER
The Department’s First Motion for Extension of Time to File Brief is GRANTED. The
brief is due on July 17, 2019.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 14th day of June, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
| {
"pile_set_name": "FreeLaw"
} |
651 N.W.2d 93 (2002)
251 Mich. App. 633
Vickie L. LANDON, Plaintiff-Appellant,
v.
TITAN INSURANCE COMPANY, Defendant-Appellee.
Docket No. 230596.
Court of Appeals of Michigan.
Submitted June 4, 2002, at Grand Rapids.
Decided June 14, 2002, at 9:00 a.m.
Released for Publication September 10, 2002.
*95 Allaben, Vander Weyden, Timmer & Bandeen (by John R. Allaben), Grand Rapids, for the plaintiff.
Harvey Kruse, P.C. (by Gary L. Stec and Lanae L. Monera), Grand Rapids, for the defendant.
Before: JANSEN, P.J., and SMOLENSKI and WILDER, JJ.
*94 SMOLENSKI, J.
In this first-party no-fault insurance benefits case, plaintiff appeals as of right from the trial court's grant of summary disposition in favor of defendant. We reverse and remand for further proceedings consistent with this opinion.
Plaintiff, Vickie Landon, was involved in an automobile accident on July 28, 1998, at the intersection of Sprinkle Road and Franklin Road in Kalamazoo, Michigan. At that time, plaintiff did not own her own vehicle, she carried no automobile insurance, and she did not live with any relative who carried automobile insurance. Further, at the time of the accident, plaintiff was driving a 1985 Buick automobile owned by her friend Janice Roe. Although the vehicle carried valid license plates, it was uninsured. Therefore, under M.C.L. § 500.3172, the Michigan Assigned Claims Facility named defendant to handle any no-fault claims arising from the accident.
Five months before the accident, in February 1998, Roe had allowed the insurance to expire on the Buick, through nonpayment of the premium. Roe decided to sell the vehicle because she was not driving it, it was uninsured, and she had two other vehicles. Because Roe lived in a rural area, she thought that more people would see the vehicle if it were parked in plaintiff's yard. Therefore, Roe obtained plaintiff's permission to park the vehicle in her yard. To the best of her recollection, Roe parked the vehicle in plaintiff's yard in late June or early July 1998, while plaintiff was not at home. Plaintiff testified that she returned from vacation shortly after the Fourth of July holiday, and that Roe's vehicle was parked in her yard when she returned.
Roe acknowledged that the vehicle was uninsured while parked in plaintiff's yard. However, she testified that plaintiff did not know about the vehicle's uninsured status. Roe testified that she tried to telephone plaintiff to inform her that the vehicle was uninsured, but she was never able to contact plaintiff with that information. Furthermore, both Roe and plaintiff testified that they never discussed whether plaintiff was permitted to use the vehicle while it was parked in plaintiff's yard. Therefore, Roe neither gave plaintiff express permission to use the vehicle, nor expressly prohibited plaintiff from doing so. However, during her deposition, Roe equivocated about whether she would have granted plaintiff permission to use the vehicle, had the two discussed the topic. On the one hand, Roe testified that she trusted plaintiff, and that she would not have had any problem loaning plaintiff her vehicle. On *96 the other hand, Roe testified that she would have been concerned about the lack of insurance on the vehicle, and that she probably would have told plaintiff not to drive it for that reason.
Because Roe had only one set of keys to the vehicle, she left the vehicle unlocked and placed the keys under the floor mat. Roe intended that potential purchasers could use the keys to take the vehicle for a test-drive.[1] According to plaintiff, she did not believe that she was expected to accompany potential purchasers on test-drives. Rather, plaintiff believed that she could simply give potential purchasers the keys to Roe's vehicle. While plaintiff conceded that Roe probably did not expect her to use the vehicle herself, she also testified that, when she used the vehicle on the day of the accident, she did not think that Roe would have a problem with her driving it. Furthermore, plaintiff testified that she had probably driven Roe's vehicle on prior occasions, before Roe parked it in plaintiff's yard.[2]
In the trial court, defendant filed a motion for summary disposition, arguing that M.C.L. § 500.3113(a) prohibited plaintiff's claim for personal protection insurance (PIP) benefits because plaintiff had "unlawfully" taken Roe's vehicle on the date of the accident. The trial court agreed, concluding that plaintiff "did unlawfully take Ms. Roe's vehicle." The trial court reasoned that: (1) Roe had not given plaintiff express permission to use the vehicle, (2) plaintiff did not have any expectation that she could drive the vehicle, clearly understanding that the vehicle was on her property only to be sold, and (3) plaintiff was given the authority to allow potential buyers to test-drive the vehicle, but plaintiff was not herself a potential buyer and was not test-driving the vehicle at the time of the accident. On the basis of those facts, the trial court concluded that plaintiff "exceeded her authority and unlawfully took Ms. Roe's vehicle." Accordingly, the trial court granted defendant's motion for summary disposition, precluding plaintiff's claim for PIP benefits. Plaintiff appeals as of right from that order.
This Court reviews de novo a trial court's grant of summary disposition under MCR 2.116(C)(10). Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). We must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the party opposing the motion. Id. Summary disposition is properly granted under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id.
Plaintiff first argues that the trial court erred in ruling, as a matter of law, that she had "unlawfully" taken Roe's vehicle for purposes of M.C.L. § 500.3113(a). The statute provides, in pertinent part:
A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the accident any of the following circumstances existed:
(a) The person was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled *97 to take and use the vehicle. [MCL 500.3113(a).]
Under this statutory provision, coverage for PIP benefits will be denied if "(1) a person takes a vehicle unlawfully and (2) that person did not have a reasonable basis for believing that she could take and use the vehicle." Mester v. State Farm Mut. Ins. Co., 235 Mich.App. 84, 87, 596 N.W.2d 205 (1999), citing Bronson Methodist Hosp. v. Forshee, 198 Mich.App. 617, 626, 499 N.W.2d 423 (1993). The trial court granted defendant's motion for summary disposition, primarily on the basis of a conclusion that plaintiff "did unlawfully take" Roe's vehicle on the day of the accident. Therefore, resolution of the present case turns on what it means to "unlawfully" take a vehicle in the context of subsection 3113(a).
The phrase "taken unlawfully" is not defined in the no-fault act itself. Mester, supra at 87, 596 N.W.2d 205; Butterworth Hosp. v. Farm Bureau Ins. Co., 225 Mich.App. 244, 247, 570 N.W.2d 304 (1997). However, defendant argues that there are two ways that a person can take another's vehicle "unlawfully," for purposes of subsection 3113(a). Defendant argues that a person can either violate M.C.L. § 750.413 (unlawfully taking possession of and driving away a motor vehicle), or a person can violate M.C.L. § 750.414 (use of a motor vehicle without authority but without intent to steal). Defendant argues that plaintiff violated both these statutory sections and is therefore barred from collecting PIP benefits under M.C.L. § 500.3113 (a).
MCL 750.413 sets forth the felony offense of taking possession of and driving away a motor vehicle belonging to another.[3] The statute provides:
Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than five years. [MCL 750.413.]
The essential elements of this offense are: "(1) possession of a vehicle, (2) driving the vehicle away, (3) that the act is done wilfully, and (4) the possession and driving away must be done without authority or permission." People v. Hendricks, 200 Mich.App. 68, 71, 503 N.W.2d 689 (1993), aff'd 446 Mich. 435, 521 N.W.2d 546 (1994). See also People v. Andrews, 45 Mich.App. 354, 356, 206 N.W.2d 517 (1973).
The unlawful taking and driving away of a motor vehicle does not require an intent to steal, that is, to permanently deprive the owner of his property. See Hendricks, supra at 71, 503 N.W.2d 689; People v. Murph, 185 Mich.App. 476, 481, 463 N.W.2d 156 (1990); People v. Davis, 36 Mich.App. 164, 165, 193 N.W.2d 393 (1971). While the offense requires the specific intent to take possession of the vehicle unlawfully, it does not require an intent to steal the vehicle; the offense punishes conduct that does not rise to the level of larceny because an intent to permanently deprive the owner of the property is lacking. Mester, supra at 88, 596 N.W.2d 205.
*98 This Court has issued two decisions concerning whether a violation of M.C.L. § 750.413 qualifies as an "unlawful" taking and therefore allows application of the PIP benefits exclusion contained in M.C.L. § 500.3113(a). However, those decisions conflict. The Mester Court held that a violation of M.C.L. § 750.413 precludes an injured person from recovering PIP benefits under subsection 3113(a). Mester, supra at 88, 596 N.W.2d 205. In contrast, the Butterworth Court held that a violation of M.C.L. § 750.413 does not preclude an injured person from recovering PIP benefits under subsection 3113(a). Butterworth, supra at 249-250, 570 N.W.2d 304. The conflict between these two decisions appears to be premised on whether the "taken unlawfully" language of subsection 3113(a) applies only in situations where the injured person has "stolen" the vehicle in which the person was injured. Further, the conflict appears to arise from our Supreme Court's fractured opinion in Priesman v. Meridian Mut. Ins. Co., 441 Mich. 60, 490 N.W.2d 314 (1992).[4]
Fortunately, we need not attempt to resolve the conflict between Mester and Butterworth in order to decide the present case. We conclude, as a matter of law, that plaintiff did not violate M.C.L. § 750.413 because she was a bailee of Roe's vehicle at the time of the accident. Therefore, whether a violation of M.C.L. § 750.413 allows application of the exclusion contained in M.C.L. § 500.3113(a) is technically irrelevant here.
Plaintiff argues that she did not violate M.C.L. § 750.413 because Roe voluntarily placed the vehicle in plaintiff's yard, and plaintiff was therefore in lawful possession of the vehicle on the day of the accident. Essentially, plaintiff argues that there is a distinction between an unlawful taking and an unlawful use of a motor vehicle, and contends that she did not commit an unlawful taking. In contrast, defendant contends that plaintiff "took possession" of the vehicle in an unlawful manner because she did not have Roe's express permission to drive it.
We conclude that the Court's decision in People v. Smith, 213 Mich. 351, 182 N.W. 64 (1921), is dispositive of this issue. In Smith, the defendant was the proprietor of a garage in Bay City. Id. at 351, 182 N.W. 64. The owner of a vehicle parked it in the defendant's garage at night, paying for the right to do so. Id. at 351-352, 182 N.W. 64. The defendant was convicted under the predecessor statute to M.C.L. § 750.413,[5] apparently because he drove the vehicle without first obtaining the owner's permission to do so. Smith, supra at 352, 182 N.W. 64. At trial, the defendant had moved to dismiss the charges, arguing that he could not be guilty of "taking possession" of the vehicle because he had legal possession of the vehicle while it was parked in his garage. Id. at 352, 182 N.W. 64.
On appeal, our Supreme Court agreed with the defendant's argument, ruling:
*99 It is clear that, to constitute the offense, possession must be taken, followed by a driving or taking away, and this must be done wilfully or wilfully and wantonly and without authority. Here the defendant had possession as bailee and if he used such lawfully obtained possession for an unauthorized purpose and in breach of his trust as bailee, and wilfully and wantonly and without authority drove the car away from his garage he would not be guilty of the charge here laid. [Id. at 353, 182 N.W. 64 (emphasis added).]
Because the defendant was a bailee of the automobile, he could not be charged with unlawfully taking and driving away that automobile. Id. at 353, 182 N.W. 64. Our Supreme Court therefore reversed the trial court's order and vacated the defendant's conviction. Id.
In the present case, it is undisputed that Roe voluntarily parked her vehicle in plaintiff's yard, in an attempt to sell the vehicle. It is also undisputed that Roe left the keys in the vehicle and that plaintiff had Roe's permission to give those keys to potential purchasers who wanted to take the vehicle for a test-drive. We conclude that, like the garage owner in Smith, plaintiff was a bailee of the vehicle. Because plaintiff was in lawful possession of the vehicle on the day of the accident, she could not have violated M.C.L. § 750.413. The trial court did not expressly state whether it found that plaintiff had violated M.C.L. § 750.413. However, to the extent that the trial court's ruling was based on such a conclusion, that ruling was erroneous as a matter of law.
Defendant next argues that a violation of M.C.L. § 750.414 qualifies as an "unlawful" taking and therefore allows application of the PIP benefits exclusion contained in subsection 3113(a). We disagree. The trial court's opinion implies a finding that plaintiff violated M.C.L. § 750.414, because the court stated that "plaintiff exceeded her authority and unlawfully took Ms. Roe's vehicle." As will be discussed later, using a vehicle in excess of one's authority is the essence of the offense set forth in M.C.L. § 750.414. Assuming arguendo that plaintiff violated M.C.L. § 750.414, we disagree with the trial court's conclusion that such a violation necessarily qualifies as an "unlawful" taking under subsection 3113(a).
MCL 750.414 sets forth the misdemeanor offense of using a motor vehicle without authority but without intent to steal. The statute provides, in pertinent part:
Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who shall be a party to such unauthorized taking or using, shall upon conviction thereof be guilty of a misdemeanor.... the provisions of this section shall be construed to apply to any person or persons employed by the owner of said motor vehicle or any one else, who, by the nature of his employment, shall have the charge of or the authority to drive said motor vehicle if said motor vehicle is driven or used without the owner's knowledge or consent. [MCL 750.414.]
"To be convicted of this offense, a defendant must have intended to take or use the vehicle, knowing that he had no authority to do so." People v. Laur, 128 Mich.App. 453, 455, 340 N.W.2d 655 (1983). Because no intent is required beyond that of doing the act itself, this is a general intent crime. Id. at 455-456, 340 N.W.2d 655. "The requirement that the defendant possess knowledge that his use of the vehicle is unauthorized does not raise a specific intent. This knowledge element constitutes the mens rea of the offense, as the intentional use of a vehicle, without more, is not a proscribed act. As such the knowledge element in this case *100 reflects only the general criminal intent necessary in most crimes." Id. at 456, 340 N.W.2d 655.
Several appellate decisions have explored the distinction between the felony offense of unlawfully driving away a motor vehicle and the misdemeanor offense of using a vehicle without authority. The felony offense requires that "possession of the vehicle be taken unlawfully from the owner," while the misdemeanor offense requires only the illegal use of a vehicle, lawful possession of which has already been obtained. People v. Blocker, 45 Mich.App. 138, 142, 206 N.W.2d 229 (1973), aff'd 393 Mich. 501, 227 N.W.2d 767 (1975) (emphasis added). Stated differently, "[t]he distinction between the two offenses is that UDAA (joyriding) requires the defendant to take possession of the motor vehicle without the owner's permission, while the misdemeanor offense of unlawful use of a motor vehicle is committed when an individual, who has been given lawful possession of a motor vehicle, uses it beyond the authority which has been granted to him by the owner." People v. Hayward, 127 Mich.App. 50, 61, 338 N.W.2d 549 (1983) (emphasis added).[6]
Furthermore, in State Farm Mut. Automobile Ins. Co. v. Hawkeye-Security Ins. Co., 115 Mich.App. 675, 321 N.W.2d 769 (1982), this Court impliedly concluded that a violation of M.C.L. § 750.414 did not call for application of the no-fault benefits exclusion contained in subsection 3113(a). In State Farm, supra at 677, 321 N.W.2d 769, a driver was involved in an accident while operating his employer's vehicle. The parties stipulated that the driver was permitted to use the vehicle for company business during regular business hours, but also stipulated that the driver was not in the course and scope of his employment when the accident occurred. Id. at 678, 321 N.W.2d 769. The defendant insurer argued that the driver was not entitled to PIP benefits under M.C.L. § 500.3113(a) because he was "acting unlawfully" when he used the employer's vehicle outside business hours, for personal uses. State Farm, supra at 681-682, 321 N.W.2d 769. This Court disagreed, stating:
[The driver] took the vehicle lawfully and within the scope of his employment. He continued to use the vehicle for his own purposes after working hours, and was injured while doing so.... Because the original taking of the motor vehicle in which [the driver] was injured was not unlawful, the exclusionary provisions of § 3113(a) do not apply. [Id. at 682, 321 N.W.2d 769.]
That is, because the driver had not violated M.C.L. § 750.413, but at most had violated M.C.L. § 750.414, the no-fault benefits exclusion contained in subsection 3113(a) did not apply.
Because subsection 3113(a) applies only when an individual has unlawfully "taken" a vehicle, and because an individual can violate M.C.L. § 750.414 even though the individual was in lawful possession of the vehicle and did not "take" it unlawfully, a violation of M.C.L. § 750.414 does not call for application of the no-fault PIP benefits exclusion contained in subsection 3113(a).[7]
*101 As succinctly stated in Bronson, supra at 627, 499 N.W.2d 423, "it is the unlawful nature of the taking, not the unlawful nature of the use, that forms the basis of the exclusion" under subsection 3113(a).[8]
Plaintiff also argues that case law interpreting the owner's liability statute, M.C.L. § 257.401(1), is relevant to the determination whether plaintiff "unlawfully" took Roe's vehicle under subsection 3113(a). Plaintiff argues that she is entitled to the common-law presumption, created under the owner's liability statute, that an operator of a vehicle is driving it with the implied consent of the owner. Because she had Roe's implied consent to use the vehicle on the day of the accident, plaintiff argues that she could not have taken the vehicle "unlawfully" for purposes of subsection 3113(a). Defendant argues that the common-law presumption does not apply because Roe did not physically give plaintiff the keys to the vehicle, but simply left the keys in the vehicle. In the alternative, defendant argues that plaintiff's own deposition testimony has successfully rebutted the presumption.
In Fout v. Dietz, 401 Mich. 403, 405, 258 N.W.2d 53 (1977), our Supreme Court explained that the "operation of a motor vehicle by one who is not a member of the family of the owner gives rise to a rebuttable common-law presumption that the operator was driving the vehicle with the express or implied consent of the owner."[9] In Bieszck v. Avis Rent-A-Car System, Inc., 459 Mich. 9, 583 N.W.2d 691 (1998), our Supreme Court explained the rationale behind the existence of this rebuttable presumption:
"The [owner's liability] statute absolves the owner from liability only when the vehicle is being driven without his express or implied consent or knowledge. The consent or knowledge, therefore, refers to the fact of thedriving. It does not refer to the purpose of the driving, the place of the driving, or to the time of the driving.
"The purpose of the statute is to place the risk of damage or injury upon the person who has the ultimate control of the vehicle.
"The owner who gives his keys to another, and permits that person to move several thousand pounds of steel upon the public highway, has begun the chain of events which leads to damage or injury.
"The statute makes the owner liable, not because he caused the injury, but because he permitted the driver to be in a position to cause the injury." [Id. at 14, 583 N.W.2d 691, quoting Roberts v. Posey, 386 Mich. 656, 661-662, 194 N.W.2d 310 (1972) (emphasis in Roberts).]
This Court has previously held that the broad definition of "consent" employed by our Supreme Court in the owner's liability context is of equal applicability when deciding whether a vehicle has been "taken unlawfully," for purposes of subsection 3113(a). Bronson, supra at 624-625, 499 N.W.2d 423. Plaintiff argues that the facts of this case support a finding that she had Roe's implied consent to use *102 the vehicle, and therefore could not have taken the vehicle "unlawfully," because Roe parked the vehicle on plaintiff's property and entrusted plaintiff with the keys. Defendant argues that the presumption of implied consent does not apply because Roe did not physically give plaintiff the keys, but simply left the keys inside the vehicle. To support this argument, defendant relies on the language of Bieszck, supra at 14, 583 N.W.2d 691, quoting Roberts, supra at 662, 194 N.W.2d 310, which states that "`[t]he owner who gives his keys to another, and permits that person to move several thousand pounds of steel upon the public highway, has begun the chain of events which leads to damage or injury.'" In essence, defendant argues that Roe did not "give" her keys to plaintiff.
We conclude that plaintiff has, at the very least, raised a genuine issue of material fact regarding whether she had Roe's implied consent to use the vehicle. Roe's action of leaving the keys in the vehicle, while parked on plaintiff's property, qualifies as giving or entrusting plaintiff with the keys to her vehicle. Roe may only have intended that plaintiff use those keys in order to allow test-drives of the vehicle by potential purchasers. However, the fact that plaintiff exceeded the scope of intended use of the vehicle is irrelevant to the determination whether the driver of the vehicle had the owner's implied consent to use it. Bronson, supra at 625, 499 N.W.2d 423.
Once we have determined that the presumption of implied consent applies in a particular case, we must determine whether the presumption has been successfully rebutted. In Michigan Mut. Liability Co. v. Staal Buick, Inc., 41 Mich.App. 625, 626, 200 N.W.2d 726 (1972), this Court explained that "the defendant had to introduce positive, unequivocal, strong and credible evidence to the contrary in order to make this presumption disappear." Defendant argues that it has rebutted the presumption, given plaintiff's admissions that: (1) Roe did not give plaintiff express permission to drive the vehicle, (2) Roe did not expect plaintiff to drive the vehicle, and (3) the vehicle was on plaintiff's property to be sold, not for plaintiff's use.
However, defendant relies on only those portions of the deposition testimony that favor its position. Plaintiff also testified that: (1) she had probably driven Roe's vehicle on at least one occasion before the accident, (2) Roe had left the vehicle at plaintiff's house, with the keys in it, and (3) plaintiff did not think Roe would have a problem with her using the vehicle to drive half a mile down the road to a fast-food restaurant. Furthermore, Roe herself testified that she would have trusted plaintiff with her vehicle. We conclude that defendant has failed to present "positive, unequivocal, strong and credible evidence" that plaintiff did not have Roe's consent to use the vehicle. This is not a case, for example, where the vehicle's owner expressly told the ultimate driver that the driver could not use the vehicle. Both Roe and plaintiff testified that Roe never made any such statement. Thus, we conclude that the presumption of implied consent has not been rebutted. Because plaintiff had Roe's implied consent to use the vehicle, she did not take it "unlawfully" for purposes of M.C.L. § 500.3113(a). Bronson, supra.
We conclude that the trial court erred as a matter of law in ruling that plaintiff "unlawfully" took Roe's vehicle for purposes of M.C.L. § 500.3113(a), because: (1) plaintiff did not violate M.C.L. § 750.413, (2) a violation of M.C.L. § 750.414 does not call for application of the benefits exclusion contained in subsection 3113(a), and (3) plaintiff is entitled to *103 the common-law presumption that she had Roe's implied consent to use the vehicle.
Further, even if plaintiff had taken Roe's vehicle "unlawfully," the plain language of subsection 3113(a) would still permit plaintiff to recover PIP benefits if she "reasonably believed that ... she was entitled to take and use the vehicle." As set forth in Bronson, supra at 626, 499 N.W.2d 423, "under the statute, it is necessary not only that the taking of the vehicle be unlawful, but also that the person who took the automobile not have a reasonable basis for believing that he could take and use the vehicle." The trial court ruled that plaintiff did not have a reasonable "expectation that she could drive the vehicle, clearly understanding that the vehicle was on her property only to be sold." We conclude that the trial court erred because a genuine issue of material fact existed regarding the reasonableness of plaintiff's belief that she had Roe's permission to use the vehicle.
Plaintiff did testify that the vehicle was parked on her property in order to facilitate its sale, and it was not placed on her property for her use. Further, she testified that Roe probably did not expect her to use it. However, Roe did leave plaintiff in possession of both the vehicle and its keys. As plaintiff testified: "Basically, I mean, she knew I had the keys. She knew the car was at my house. She knew I had access to it, so I didn't think it was going to be that big of [a] deal. I was running to Taco Bell. Less than half of [a] mile from my house." On the basis of this testimony, and viewing all the evidence in the light most favorable to plaintiff, we conclude that a genuine issue of material fact exists regarding whether plaintiff reasonably believed that she was entitled to use the vehicle. MCL 500.3113(a). A rational jury could have found that plaintiff had a reasonable belief that Roe would not have minded plaintiff's borrowing the car for a quick trip to a fast-food restaurant only half a mile up the road.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] There was no testimony in the lower court record to indicate whether any potential purchasers actually did take the vehicle for a test-drive.
[2] In contrast, Roe testified that plaintiff had never driven the vehicle before the day of the accident.
[3] This offense is sometimes called "UDAA," and is sometimes called "joyriding." See Mester, supra at 88, 596 N.W.2d 205; People v. Hayward, 127 Mich.App. 50, 61, 338 N.W.2d 549 (1983); People v. Murph, 185 Mich.App. 476, 481, 463 N.W.2d 156 (1990). However, this nomenclature can be confusing, because the misdemeanor offense described in M.C.L. § 750.414 is also sometimes referred to as "joyriding." See Priesman v. Meridian Mut. Ins. Co., 441 Mich. 60, 70, 490 N.W.2d 314 (1992) (Griffin, J., dissenting).
[4] The lead opinion in Priesman reasoned that the legislative purpose behind subsection 3113(a) was" to except from no-fault coverage thieves while driving stolen vehicles even if they or a spouse or relative had purchased no-fault insurance, and not necessarily to except joyriders from coverage." Priesman, supra at 67, 490 N.W.2d 314 (emphasis added). However, only three justices adopted this analysis, with a fourth justice concurring in the result only. Id. at 69, 490 N.W.2d 314.
The three justices who joined in the dissent would have held that subsection 3113(a) applied not only to car thieves, but also to joyriders. Id. at 76, 490 N.W.2d 314 (Griffin, J., dissenting).
[5] See 1919 PA 313, quoted in Smith, supra at 352, 182 N.W. 64. The 1919 version of the statute is virtually identical to the current version of the statute, M.C.L. § 750.413.
[6] This distinction is also set forth in Smith, supra. In that case, our Supreme Court held that the defendant did not commit the offense of unlawfully taking away a motor vehicle because he was in lawful possession of the vehicle as a bailee, and therefore could not have taken possession unlawfully. Smith, supra at 353, 182 N.W. 64. However, the Court noted that the defendant had probably committed the offense of taking or using an automobile without authority and without intent to steal the automobile, because that offense did not require an unlawful taking of possession. Id. at 352, 182 N.W. 64.
[7] This conclusion is further supported by this Court's decision in Butterworth, which held that a violation of M.C.L. § 750.414 did not call for application of the exclusion contained in subsection 3113(a). Butterworth, supra at 249-250, 570 N.W.2d 304. But compare the dissent in Priesman, where three justices would have held that a violation of M.C.L. § 750.414 does call for application of the exclusion contained in subsection 3113(a). Priesman, supra at 76, 490 N.W.2d 314 (Griffin, J., dissenting).
[8] Emphasis added.
[9] Citations omitted.
| {
"pile_set_name": "FreeLaw"
} |
555 S.W.2d 913 (1977)
Paige B. BAYOUD, Appellant,
v.
Howard Y. SIGLER, Appellee.
No. 7994.
Court of Civil Appeals of Texas.
August 29, 1977.
Rehearing Denied September 29, 1977.
*914 Lewis R. Sifford, L. W. Anderson, Ralph E. Hartman, Dallas, for appellant.
Ronald R. Waldie, Dallas, for appellee.
STEPHENSON, Justice.
This is a suit brought by Dr. Howard Sigler against Dr. Paige Bayoud for damages because of slander. Trial was by jury and judgment rendered for plaintiff on the verdict.
The jury findings, in essence, are: On two occasions defendant made the statement that plaintiff was an incompetent physician. That defendant also made these statementsthat plaintiff was a liar, that plaintiff came to the hospital in a state of intoxication, that plaintiff was of low moral character. That such statements were not substantially true, were slanderous and were motivated by malice. That plaintiff's actual damages were in the amount of $75,000, and exemplary damages, $150,000.
Plaintiff remitted $100,000 of the exemplary damages which were in excess of his pleadings, and judgment was rendered in the amount of $125,000.
Defendant has twenty-three points of error attacking each of the jury findings that there is no evidence and insufficient evidence, and that such findings are contrary to the great weight and preponderance of the evidence. We pass upon the no evidence points by considering only the favorable *915 evidence and we consider the entire record in passing upon the remaining points.
There are 654 pages in this statement of facts containing the testimony of 22 witnesses. As it occurs too frequently in sharply contested cases, the two versions of the episodes described by the witnesses are alarmingly dissimilar. Passing upon the credibility of the witnesses in order to determine the true facts must have been an exceedingly difficult task for the jury in this case. The animosity between the two medical doctors who were parties to this litigation is clearly shown throughout this record.
The testimony in the record supports plaintiff's version as to the incidents which transpired. Plaintiff is a medical doctor specializing in orthopedic surgery and was associated with the Medical Center Hospital of Garland from 1959 until January, 1973. Defendant was chief of staff and co-owner of that hospital at all times material to this cause of action. Plaintiff treated defendant for five different injuries or illnesses. According to plaintiff, his troubles with defendant began when he refused to falsify a claim and perjure himself regarding an injury for which he treated defendant. They engaged in a confrontation in a hall in the hospital during the course of which defendant made one of the statements about plaintiff's incompetence and about plaintiff being a liar. Such statements were made in the presence of one of plaintiff's patients, her mother, and a friend. The second incident occurred during a dinner preceding a staff meeting in the hospital. In the presence of the several attending doctors, defendant made the second statement about plaintiff's incompetence and also reflecting upon plaintiff's honesty and integrity.
Defendant's version, which was supported by witnesses called by him, was entirely different and would have supported jury findings to the contrary. However, there is evidence to support the findings as outlined above, and such findings are not clearly wrong or manifestly unjust. All of the evidentiary points of error are overruled.
Defendant has points of error that both the actual and exemplary damage findings are excessive and that plaintiff's evidence shows no financial damage. The actual damage issue informed the jury it could consider mental anguish, humiliation and embarrassment together with damage to reputation and character as the elements of damages. The definition of "exemplary damages" in the charge was as follows:
"`EXEMPLARY DAMAGES' means an amount which may, in your discretion, award as an example to others and as a penalty or by way of punishment in addition to any amount which may have been found by you as actual damages."
The law governing these points is well settled in this state. The term "slander" is applied to oral defamation only. Defamatory language may be actionable per se, that is, in itself, or it may be actionable per quod, that is, only an allegation and proof of special damages. In general, oral words are not actionable without proof of special damages, unless they impute the commission of a crime or affect a person injuriously in his office, profession or occupation. Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197 (1943); Gulf Construction Company v. Mott, 442 S.W.2d 778 (Tex.Civ.App.Houston [14th Dist.] 1969, no writ); Butler v. Central Bank & Trust Company, 458 S.W.2d 510 (Tex.Civ.App.Dallas 1970, writ dism'd); Glenn v. Gidel, 496 S.W.2d 692 (Tex.Civ. App.Amarillo 1973, no writ).
The statements by defendant relating to the incompetency of plaintiff as a physician were actionable per se. It is not necessary to prove actual damages where the words used are libelous per se. The law presumes actual damages. Hornby v. Hunter, 385 S.W.2d 473 (Tex.Civ.App. Corpus Christi 1964, no writ); Davila v. Caller Times Publishing Company, 311 S.W.2d 945 (Tex.Civ.App.San Antonio 1958, no writ); and Whalen v. Weaver, 464 S.W.2d 176 (Tex.Civ.App.Houston [1st Dist.] 1970, writ ref'd n.r.e.).
*916 This court is well aware that the amount of damages is peculiarly within the province of the jury and that such amount cannot be measured by any fixed rule or standard. This is especially true in the type of case we have before us with the elements of damages involved as set out above, such elements were mental anguish, humiliation and embarrassment, together with damage to reputation and character. We have carefully considered the evidence and exercised sound judicial judgment and discretion, as we are required to do under Tex.R.Civ.P. 439. We have come to the conclusion that $25,000 is reasonable compensation for plaintiff to recover for his actual damages, and $10,000 for exemplary damages.
We have carefully considered the remaining points of error and, finding no reversible error, they are overruled.
From our review of the record and the controlling authorities, we are of the opinion that the amount adjudged in favor of plaintiff as actual damages is excessive to the amount of $50,000, and that the amount adjudged in his favor as exemplary damages is excessive to the extent of $40,000. Plaintiff is granted ten days from the date of this opinion within which to file remittitur of these amounts. If such remittitur is filed, the judgment of the trial court will be reformed and affirmed. Otherwise, it will be reversed and the cause remanded.
Costs in the trial court are adjudged against defendant; costs on appeal are divided equally between the parties.
Affirmed on condition.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,397-01
EX PARTE BILLY JOE THOMPSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1358558-A IN CRIMINAL DISTRICT COURT NO. 1
FROM TARRANT COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual
assault of a child under 14 years of age and indecency with a child by contact and sentenced to 75
and 20 years’ imprisonment, respectively, to run concurrently.
On January 4, 2019, the trial court made findings of fact and conclusions of law rejecting
Applicant’s allegations of ineffective assistance of counsel and false expert testimony. The trial
court did not hold an evidentiary hearing. The trial court adopted the State’s proposed
2
findings of fact and conclusions of law recommending that the relief sought be denied.
This Court has reviewed the record with respect to the allegations made by applicant.
We agree with the trial judge’s recommendation and adopt the trial judge’s findings and
conclusions with the following exceptions: Findings paragraph 20 and Conclusions
paragraph 16. Therefore, based on the trial court’s findings of fact and conclusions of law as well
as this Court’s independent review of the record, we deny relief.
IT IS SO ORDERED THIS THE 13th DAY OF FEBRUARY, 2019.
Filed: February 13, 2019
Do not publish
| {
"pile_set_name": "FreeLaw"
} |
950 F.2d 727
Whitsel (Jesse Ellsworth)v.Nix (Crispus)
NO. 91-1073
United States Court of Appeals,Eighth Circuit.
JUL 15, 1991
Appeal From: N.D.Iowa
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
448 F.2d 1045
KNOX HILL TENANT COUNCIL et al., Appellants,v.Walter E. WASHINGTON, Individually and as Commissioner of the District of Columbia, et al.
No. 22781.
United States Court of Appeals, District of Columbia Circuit.
Argued September 12, 1969.
Decided February 4, 1971.
Mr. Richard B. Stewart, Washington, D. C., with whom Messrs. Peter Smith and J. Kirkwood White, Washington, D. C., were on the brief, for appellants.
Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for the District of Columbia appellees.
Mr. Frank B. Friedman, Atty., Department of Justice, with whom Messrs. George R. Hyde and Herbert Pittle, Attys., Department of Justice, were on the brief, for the federal appellees.
Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
McGOWAN, Circuit Judge:
1
This appeal is from a judgment of the District Court denying a motion for a preliminary injunction and dismissing the complaint on the grounds of (1) failure to state a claim for which relief may be granted and (2) the action is an unconsented suit against the United States. Appellants are individual tenants (and associations of such tenants) of public housing facilities in the District of Columbia, suing on behalf of themselves and all others similarly situated (Fed.R. Civ.P. Rule 23), and complaining of the failure of such facilities to be properly maintained and repaired. Appellees are officials of (1) the Department of Housing and Urban Development of the United States (HUD), (2) the National Capital Housing Authority (NCHA), and (3) the District of Columbia Government concerned with enforcement of the D.C. Housing Regulations. The complaint seeks declaratory and injunctive relief. We are presently concerned only with the questions of (1) the District Court's jurisdiction to entertain the action at all, and (2) whether the complaint states a claim upon which relief can be granted. For the reasons hereinafter appearing, we reverse the judgment of dismissal and remand the case for trial.
2
* Deeming it essential to an understanding of the issues raised by this appeal, we address ourselves first to the scheme under which public housing is provided in the United States generally, and in the District of Columbia in particular. The keystone statute is the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq., sponsored by Senator Wagner of New York, and strongly supported by Senator Taft of Ohio. It was a recognition by the Congress that the social evils inherent in substandard housing throughout the nation would yield only to a demonstration of federal interest and the provision of federal funds.1 The substantive provisions of that Act are prefaced (§ 1401) by an explicit declaration that it is
3
"the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in urban and rural nonfarm areas, that are injurious to the health, safety, and morals of the citizens of the Nation * * *."
4
The Act went on (§ 1402(1)) to define the "low-rent housing," which it was its purpose to provide, as "decent, safe, and sanitary dwellings within the financial reach of families of low income;" and it characterized the latter (§ 1402 (2)) as persons unable to procure in the private market "an adequate supply of decent, safe, and sanitary dwellings for their use." The Act authorized loans and grants of federal money for both the construction and the operation of such housing, to the end not only that its low-income nature should be preserved, but also its "decent, safe, and sanitary" character.
5
The making and administration of such loans and grants are vested in HUD. They are available to locally created housing agencies throughout the country under continuing contracts in which those agencies assume certain obligations (42 U.S.C. § 1415(4)). One of those obligations is operation calculated to maintain the "decent, safe, and sanitary" character of the dwellings. It is the responsibility of HUD to police the performance of these contracts; and the sanctions with which it is armed in this regard are those of (a) reducing or terminating the annual federal contributions (42 U.S.C. § 1415(3)), (b) increasing the interest rate on loans or declaring them in default (42 U.S.C. § 1415 (1)), or (c) assuming the actual management of a project. It is further authorized to make emergency financial grants "where necessary to eliminate a serious hazard to life, health, or safety of the occupants * * *."
6
Outside the District of Columbia, local housing agencies characteristically come into being under authority deriving ultimately from the state legislatures. Within the District, and in order to enable its residents to share in the purposes of the Housing Act of 1937, the Congress acted to create a qualified local housing agency. The resulting statute is contained in the District of Columbia Alley Dwelling Law, 5 D.C.Code § 103 et seq. It designates NCHA as "a public housing agency within the meaning of, and to carry out the purposes of," the Housing Act of 1937. As such, it is authorized to receive grants or loans from HUD for the "construction, maintenance, or operation" of public housing projects, to enter into contracts incident to such receipt, and to comply with conditions contained in such contracts.
7
There is presently in being an agreement between NCHA and HUD entitled the "Consolidated Annual Contributions Contract." That contract provides that NCHA shall at all times (1) "operate each Project * * * solely for the purpose of providing decent, safe, and sanitary dwellings * * *" and (2) "maintain each Project in good repair, order, and condition." These undertakings appear to be common to every such contract between HUD and a local housing agency. What is different between the District of Columbia and elsewhere is that, in the former, legal title to the physical facilities constituting a project is in the United States.
II
8
The complaint in the District Court alleged that, despite repeated efforts by tenants to call attention to, and to secure correction of, defects creating hazards to health and safety, appellees have failed to respond in compliance with their various statutory, regulatory, or contractual responsibilities, including what are asserted to be implied covenants in the formal leases entered into between each tenant and NCHA.2 It is alleged that inspectors of the D.C. Department of Licenses and Inspections have visited the premises and have served notices on NCHA of violations and deficiencies in respect of the D.C. Housing Regulations. Such notices have allegedly been ignored by the recipient, and not further pursued by the D.C. officials ultimately responsible for their enforcement. This last is said to be in contrast with enforcement actions taken against private landlords, and thereby to constitute a denial to appellants by the District officials involved of the constitutional right to equal protection guaranteed by the Fifth Amendment. The other appellees are variously charged with violating the Housing Act of 1937, the D.C. Alley Dwelling Law, the D.C. Housing Regulations, the annual contributions contract, and the individual leases.
9
The declaratory relief prayed for was that appellees be adjudged (1) under a duty to repair and maintain the premises in a decent, safe, and sanitary condition "as required by the United States Housing Act, the District of Columbia Alley Dwelling Law, and the Lease agreement, in compliance with the Housing Regulations of the District of Columbia," and (2) to have failed to discharge this duty. Injunctive relief to the same end was requested against all appellees; and, in addition, the D.C. officials were sought to be enjoined from failing or refusing to enforce the Housing Regulations against NCHA.
10
Appellants filed a motion for a preliminary injunction, accompanied by affidavits of individual tenants describing substandard conditions. The federal officials and the District officials countered with separate motions to dismiss.3 Affidavits were submitted at this juncture by officials of NCHA. Upon these papers and the arguments of counsel, the District Court concluded that it was "without jurisdiction to maintain this action" and dismissed the complaint. It wrote no opinion but entered findings of fact and conclusions of law in the form proposed by appellees.
11
These findings of fact are in large part a recital of what the NCHA affidavits are said by the court to "establish." These are enumerated by the court as follows:
12
a. That NCHA has pending before the Department of Housing and Urban Development an application for $2,722,000 for the modernization of the Frederick Douglass Housing Project;
13
b. That in the absence of approval of the application so pending, NCHA has no funds available to permit maintenance of NCHA properties beyond the maintenance which is now being carried on throughout the properties operated by NCHA;
14
c. NCHA has not failed or refused to provide adequate screens on windows and doors of its housing properties but that to the contrary, NCHA has made significant expenditures of money in providing screens on windows and doors with respect to three of the four properties named in the complaint and with respect to the fourth, Knox Hill, a determination to rehabilitate a portion of Knox Hill was made some time ago, and NCHA has been installing jalousies in lieu of screen doors in the exterior doors of that project.
15
d. Adequate weather stripping has been installed on doors of all units within the housing projects but window insulation has not been provided for the reason that adequate infiltration of air in the dwelling units requires the windows to remain as originally installed.
16
e. NCHA has constantly maintained a trained crew of its own who together with employees of contract exterminators have regularly and adequately maintained an extermination program for vermin.
* * *4
17
h. An official determination has been made by NCHA to terminate the use of the dwellings in Knox Hill and residents in occupancy have been and are being located in other low-rent housing projects operated by NCHA.
18
The remaining findings are that (1) legal title to public housing projects operated by NCHA is in the United States, (2) tenants, including the individual appellants, entered into a lease executed on behalf of the United States by NCHA, and (3) the association appellants have no proprietary or leasehold interest in any of the premises.
19
The conclusions of law, apart from the ultimate one of an absence of jurisdiction, are that the NCHA affidavits negate any threat of immediate injury and disentitle appellants "to any injunctive or other relief against any of the defendants," and that appellants "have failed to state a claim against any of the defendants for which relief may be granted." NCHA is declared to be "an agency of the United States Government," and appellees Washington and Fletcher, insofar as they function as NCHA, perform only a federal function. Other named appellees are declared to be, respectively, officers and employees of NCHA and HUD. The penultimate conclusion is that the suit against officers and employees of HUD and of NCHA is an unconsented suit against the United States.
20
On appeal to this court, separate briefs were filed by the D.C. Corporation Counsel for what he termed the District of Columbia appellees;5 and by the Department of Justice for what were described as the federal appellees, including Washington and Fletcher in their capacity as officials of NCHA. The only point argued in the first such brief is the asserted lack of authority of the District of Columbia to institute criminal proceedings against federal agencies and officers administering federal properties not in compliance with the D.C. Housing Regulations. It is said that, although the D.C. appellees do not consider that Congress can be understood as having subjected NCHA to the D.C. Housing Regulations, they instructed their inspectors to examine the public housing projects and to report their findings to NCHA. "It was hoped," says the brief, "that such a report would prompt the appropriate agencies and officials to take any necessary remedial measures," but it was not thought that their failure to do so could result in the invocation of criminal punishment — the only sanction authorized for infractions of the Housing Regulations.
21
The brief of the Department of Justice urges the correctness of the District Court's conclusion that it was without jurisdiction to proceed in the case. It takes its stand on sovereign immunity, asserting that the federal ownership of the physical properties making up the housing projects insulates those who control or administer them from suit, absent the consent of the United States. It characterizes the action as affecting the management of federal property, and denies both the power of the judiciary to entertain such a case and the applicability, direct or indirect, of the D.C. Housing Regulations to the property involved.
III
22
In assessing the correctness of the District Court's dismissal of the complaint, it is essential to differentiate between its assertion of a total want of jurisdiction, on the one hand, and, on the other, its characterization of the complaint as failing to state a claim warranting any relief. The former purports to be grounded in the concept of sovereign immunity, and presumably is confined to the NCHA and HUD appellees.6 We direct our attention in the first instance to that matter.
23
The doctrine itself is in a considerable state of disrepair, at least in terms of intellectual respectability; and it is hardly in the original condition of pristine purity which once made it such a useful tool for Government lawyers seeking to dispense with trials on the merits. See 3 Davis, Administrative Law Treatise § 27.01 (Supp.1965); Jaffe, Judicial Control of Administrative Action 229 (1965); and Hart and Wechsler, The Federal Courts and the Federal System 1151 (1953). For inferior federal courts, however, it is not without some measure of continuing vitality until either the Supreme Court or the Congress administers the coup de grace.7 Our function is to determine whether the District Court has in this case stayed within the visibly narrowed circle of the doctrine's current reach.
24
The cornerstone of the Government's submission to us on this score is the trial court's finding that the public housing projects in question are the legal property of the United States — a fact which is not in dispute. It is argued that, absent the consent of the United States, no suit will lie, under the existing formulations of the Supreme Court, which adversely affects the Government's title to such property, or which puts its federal administrators under judicial compulsion with respect to its management. The Government takes its text in this connection from the Supreme Court's statement in Larson v. Domestic & Foreign Corp., 337 U.S. 692 fn. 11, 69 S.Ct. 1457, 1462, 93 L.Ed.2d 1628 (1949), that
25
"* * * a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property * * *."
26
As the Government variously puts the issue in its brief, "[t]his case is simply an effort to dictate how property of the United States should be operated," and "[i]t is firmly established that the courts will not interfere with the public administration of government property." The precedent regarded by the Government as clearly demonstrative of the barrier to jurisdiction raised by sovereign immunity here is Gardner v. Harris, 391 F.2d 885 (5th Cir. 1968), a case which has its closest counterpart in Supreme Court authority in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962). In the latter, an action of ejection against a Forest Service officer was said to be barred, even though the defendant was wrongfully occupying land belonging to the plaintiff, where there was no allegation that the defendant was acting outside his statutory authority or in contravention of the Constitution.
27
Gardner is at least a legitimate progeny of such reasoning. There the plaintiff claimed to be entitled to an access easement reserved in land sold to the United States by his predecessor in title for use as a parkway. When the federal officer in charge put up barricades to deny the access, plaintiff sued for their removal. It was held that, since a judgment on the claim would compel an act by the Government, and since it did not appear that any statutes forbade the putting up of the barricades, jurisdiction was barred even though the federal officer might be acting in wrongful derogation of plaintiff's access right. These cases have been strongly criticized, see Cramton, Note 7 supra, at 412-414, but, in any event, they hardly seem controlling of the matter before us. No more do cases like Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), and Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963), which round out the most recent pronouncements by the Supreme Court on sovereign immunity in cases involving federal lands.
28
Appellants insist, however, that they assert no claim adverse to the Government's title to the property involved herein, nor do they seek to compel a disposition or administration of that property contrary to that expressly commanded by the Congress itself. What they seek, rather, is a judgment that the officials entrusted with that property for a particular purpose should execute that trust in accordance with its terms, and desist from ignoring the obligations imposed upon them in that regard. In neither purpose nor effect will the prosecution of this suit disturb or diminish either the Government's title or its possession. The relief sought will rather, so it is said, return appellees to the path of their duty as marked out by the Congress.
29
To the extent that sovereign immunity survives as an assurance that courts, rather than the Congress, will not dictate the disposition or utilization of property which belongs to all the people and which, with good reason in democratic theory, has been immemorially thought to reside under the legislative will, we find no threshold jurisdictional bar in the record before us. There is nothing new about judicial entertainment of suits which charge that federal officials are acting outside of, or in conflict with, the responsibilities laid upon them by the Congress or the Constitution.8 Whether such charges are true, and, if so, what remedial action the court should or may direct, are questions partaking of the merits, and not of jurisdiction to explore the merits.
30
If, after trial, it be found that appellees do in fact have a responsibility for the property in their care which they are not recognizing adequately, the court's power, at the least, to declare that responsibility and to define that default is not dissipated solely by the circumstance that legal title to the property is in the United States.9 To hold otherwise would be to say that sovereign immunity forecloses any judicial inquiry whatsoever into the custodianship by a federal official of federal property. There is no magic about real estate, or its ownership by the United States, which hedges its guardians about with an immunity not available to other executants of public policies committed to their care by the Congress.10
31
Our review hereinabove of the statutory foundations for the provision of public housing in the District of Columbia reveals a recurring preoccupation on the part of Congress with the need that such housing be "decent, safe, and sanitary." To the degree that it is not, the legislative purposes are frustrated and fail of realization. A trial may reveal that, if such frustration exists, culpability does not lie with appellees. At this stage, however, as in any lawsuit, we deal in allegations, not proofs or remedies.11 All we decide is that no viable concept of sovereign immunity known to us, nor as yet adumbrated by the Supreme Court, closes the courthouse doors completely to these appellants.12
IV
32
The findings and conclusions of the District Court are such as to suggest that its dismissal of the complaint was principally, if not entirely, motivated by considerations of sovereign immunity. This indeed is the way the Department of Justice, in its brief for the federal officials in this court, has chosen to treat it; and the Department has not undertaken to defend the District Court's action by reference to the separately stated conclusion of law that the complaint fails to state a claim upon which relief may be granted.13 The statement is in the record, however, and we think it desirable, if perhaps not essential, to deal with it as a possible independent ground for sustaining the judgment appealed from.
33
The physical arrangement of the District Court's legal conclusions strongly indicates that the one in question, which is the second in the series, is tied to the first. That first one recites that, on the basis of the NCHA affidavits, appellants "have failed to demonstrate any immediate threat of injury and therefore are not entitled to any injunctive or other relief against any of the defendants." (Emphasis supplied.) This obviously goes beyond a mere denial of the need for injunctive relief, either preliminary or permanent; and what it says is restated in more conventional pleading terms by the immediately succeeding paragraph, i. e., that the "plaintiffs have failed to state a claim against any of the defendants for which relief may be granted." What this all amounts to in this context is a resolution against appellants of factual issues appearing from the papers to be in dispute, and the consequent grant of summary judgment to appellees on the merits. That is error.
34
The NCHA affidavits, as characterized by the District Court, do a number of things. First, they refer to pending efforts by NCHA to get more money from HUD for modernization of one of the D.C. housing projects; and they assert that, absent success in that regard, NCHA has no resources admitting of maintenance and repair in a greater degree than that presently being carried out. Second, they deny the allegations of appellants, in complaint and affidavit, that there is inadequate provision of screens and weather stripping for windows and doors, or for vermin extermination. Third, they report steps taken to terminate, retroactively to April 1, 1968, charges to tenants for excess utility charges, of which appellants had complained. Fourth, they recite a supervening determination to end the use of the Knox Hill project and to relocate its occupants in other public housing facilities.
35
With respect to the first of these matters found by the District Court to have been established by the NCHA affidavits, the lawsuit surely is not to be cut off in its inception by an affidavit that NCHA is financially unable to do more than it is now doing by way of maintenance. The extent of that incapacity, and the level of current maintenance, are themselves questions of fact better determined after trial than by unilateral and ambiguous assertion; and, in any event, the fact of incapacity, if proven, would appear to bear upon the nature of the relief available to appellants rather than upon their asserted right to adequate maintenance and repair.
36
Similarly, the affidavits of appellants and NCHA are in conflict as to the adequacy of the maintenance presently being provided, and these present factual issues not properly resolvable except through the adversary processes of trial. The seeming capitulation by NCHA on the matter of the utility charges is not complete, so we are told, in that tenants remain liable for the challenged charges, now conceded to have been improper, before April 1, 1968. Lastly, the closing down of Knox Hill does not render this lawsuit moot, inasmuch as the claims of injury made in the complaint are not limited to Knox Hill but comprehend other projects operated by NCHA.
37
Thus it is that we do not find, in the circumstances seemingly relied upon by the District Court, a basis for sustaining a dismissal of the complaint for failure to state a claim. We turn now to the other contention, made upon appeal by both the D.C. Government and the Department of Justice, which might conceivably be thought to support such a disposition. That is the argument that the D.C. Housing Regulations have no force of any kind in creating or measuring the responsibilities of appellees. It is said that those Regulations simply do not apply to dwellings owned and operated by the United States, and the principal authority pressed upon us for this proposition is United States v. Wittek, 337 U.S. 346, 69 S.Ct. 1108, 93 L.Ed. 1406 (1949). That case presented the question of whether the District of Columbia Emergency Rent Act applied to Government-owned defense housing in the District. We are reminded that the Supreme Court, in reaching the result of non-applicability, stressed that the Rent Act did not refer expressly to the United States as a landlord, and reiterated a principle of statutory construction to the effect that "[a] general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect."
38
Rules for the reading of statutes are general guides only, and yield to the more tangible immediacies of the particular case. The Supreme Court has elsewhere said that "[t]here is no hard and fast rule of exclusion," and that the "purpose, the subject matter, the context, the legislative history and executive interpretation of the statute are aids to construction which may indicate an intent * * * to bring state or nation within the scope of the law." United States v. Cooper Corp., 312 U.S. 600, 604-605, 61 S.Ct. 742, 743-744, 85 L.Ed. 1071 (1940). It was in this spirit that the Court approached the problem of construction presented to it in Wittek. It noted that the central and pressing legislative purpose there was to prevent the exploitation by private landlords of the emergency demand for housing in Washington created by the outbreak of World War II. That purpose was sought to be achieved by limiting rentals to those in being on January 1, 1941. But public housing in the District had been under Government ownership and control long prior to that date, with subsidized low-income rentals unrelated to free market rates. The Court was unwilling, in the absence of an explicit manifestation to the contrary, to attribute to the Congress an intent to lump together, for purposes of protection against rent gouging, two such disparate quantities as private and public housing.
39
The Congress that authorized the D.C. Government to promulgate the Housing Regulations to assure D.C. residents suitable housing is, however, the same legislative body that, in the Housing Act of 1937 and the D.C. Alley Dwelling Law, acted to provide lower-income D.C. residents with "decent, safe, and sanitary" living accommodations. The concern for the condition of these premises voiced in these latter enactments hardly suggests that Congress consciously rejected the thought that the D.C. Housing Regulations, unlike similar local codes in other parts of the country, should bear no relationship whatsoever to the people living in Government-owned, as distinct from privately-owned, homes.14
40
Such a differentiation between citizens of this country similarly situated makes no sense at all in terms of the purposes of a Congress which has repeatedly voiced its concern for the social conditions which obtain in the Nation's Capital. Certainly those charged with the administration of the Housing Regulations have detected no such discrimination in the terms of their mandate. The D.C. Board of Appeals and Review has held that the Housing Regulations are directly applicable to public housing units, and that the elimination of a noncomplying condition is the obligation of the landlord. Appeal of Belk, Docket No. H 126, January 31, 1967. And, as we have seen, the D.C. appellees in charge of enforcement have thought it their duty to inspect NCHA premises like all others and to report violations, even though they felt the Housing Regulations to be inapplicable in the sense of providing no enforceable sanctions against their fellow appellees.15
41
The District Court, in any event, made no determination that the Housing Regulations are inapplicable or irrelevant to the projects operated by NCHA. Indeed, there is no reference of any kind to those Regulations in either its findings of fact or conclusions of law, which suggests that they played no part in its decision to dismiss the complaint. The complaint alleged, however, that appellees were variously violating and refusing to enforce the Regulations; and it is argued by appellants that the Regulations are either directly applicable or provide a standard by which to measure the alleged obligation to provide "decent, safe, and sanitary" dwellings. The record shows, moreover, that tenants of NCHA execute individual leases covering the premises occupied; and appellants allege that those leases, properly viewed, contain an implied warranty of habitability, the observance of which is to be gauged by the Housing Regulations in force from time to time.
42
Since this appeal came under submission, this court has found such a warranty to reside in all leases relating to premises covered by the Regulations. Javins v. First National Realty Corporation, 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970). Building upon an earlier ruling of the D.C. Court of Appeals that the Housing Regulations operated to invalidate a lease of premises not in compliance when the lease was executed, Brown v. Southall Realty Corp., D.C.App., 237 A.2d 834 (1968), we were unable to distinguish the situation where violations develop because of improper maintenance during the life of the lease. We held that, "by signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law," which law included the Housing Regulations. Thus, we said, whether or not those Regulations are enforced directly by official action — and we remarked the widespread failures in this regard — the tenant will have available for his protection the defenses and claims normally associated with breach of contract.
43
It may or may not be true that the parallel between private leases and public housing leases is, for this purpose, exact. But the issue is at least a very substantial one in the light of Southall and Javins, and appellants are entitled to have it considered as part of their other contentions. They allege in their complaint the existence of an implied warranty of habitability in their leases, and they base upon that allegation a request for both declaratory and injunctive relief. With that complaint reinstated by reason of our recognition of jurisdiction in the District Court, they are at liberty to pursue the matter at trial.
44
What we do not contemplate is that the issue of the D.C. Housing Regulations shall be made the occasion of a second resolution of this suit against appellants without trial. In their main brief in this court appellants, after making their jurisdictional arguments, recognized that this court "may not wish to consider * * * in the abstract context of an appeal from a dismissal on the pleadings" the merits issues of whether "the unsafe and unsanitary condition of the public housing projects violates applicable legal requirements." They noted by way of example that "the precise relevance of the various provisions relied upon by [appellants] may turn on how seriously substandard is the actual condition of [appellants'] housing, as disclosed by the proof at trial." Such considerations, it was said, "may counsel postponing consideration of some or all of [such] issues * * * until after trial." We think this to be an approach as rational as it is candid.
45
Appellants formulate these merits issues in several ways. First, they assert that, even if there were no Housing Regulations, the explicit Congressional purpose in the Housing Act, reiterated in the D.C. Alley Dwelling Law, to provide "decent, safe, and sanitary" housing creates a duty which has been violated. They deny that this statutory standard, standing alone, is too vague to admit of a judicial determination that it has been breached, at least in respect of such matters as inadequate screens, stopped-up plumbing, and similar defects which they have alleged.
46
Secondly, they point to the Annual Contributions Contract, p. 6 supra, under which HUD undertakes to provide continuing operating subsidies on condition that NCHA shall provide "decent, safe, and sanitary dwellings," and "maintain each Project in good repair, order, and condition." They assert that they will show NCHA to be in default in the observance of these conditions, and that they, as the intended beneficiaries of that contract, are thereby entitled to relief against both HUD and NCHA.
47
The Housing Regulations enter into this picture in either of two ways, according to appellants. Without the necessity of holding the Regulations directly and immediately applicable in the fullest sense, as they surely are to private housing in the District, they constitute at the least a point of reference for giving content and meaning to the statutory standard of "decent, safe, and sanitary" reflected in the Housing Act and Alley Dwelling Law, and to the contractual standard embodied in the Annual Contributions Contract. Alternatively, they assert that, in this closely-woven matrix of Congressional concerns about housing in the District of Columbia, it is not farfetched to insist that Congress may fairly be taken to have intended that the Housing Regulations, which it authorized the District to promulgate, were conceived of as extending to public, as well as private, housing.
48
Lastly, there is the issue of whether, under either of the foregoing views of the relevance of the Housing Regulations, the individual lease agreements between the tenants and NCHA are to be taken as containing warranties of habitability by implication, as is true of private leases under Southall and Javins.
49
What we have said above indicates that we do not regard any of these approaches as insubstantial. Now that appellants' right to be in court has been established, we think that the orderly administration of justice is best served by leaving their definitive resolution to abide the illumination of trial and the consequent establishment of facts which should prove helpful in that resolution.16
V
50
In reversing and remanding for trial, we hold only that the District Court erred in regarding itself as without jurisdiction by reason of sovereign immunity and, to the extent that its dismissal was founded upon separate factors subsumed under the formula of failure to state a claim, in nonsuiting appellants for that reason. As appellants themselves assert, the only issue before us on this appeal is the one of their right to stay in court for inquiry into, and resolution of, the claims put forward in their complaint. The merits of those claims abide trial.
51
There are suggestions before us that, even if appellants be right in at least some of their claims, there is nothing that can be done about them. This is notably true of the brief filed on behalf of the D.C. officials charged with enforcement of the Housing Regulations. They say in effect that they have enforced the Regulations against NCHA up to the point of invoking criminal sanctions — a step they feel powerless to take against federal officials. We are persuaded that, as to these appellees alone, the record before us shows a want of the equity which must underlie the grant of both injunctive and declaratory relief; and we see no real purpose to be served by compelling them to continue as parties to this proceeding. Their future course of conduct will undoubtedly be shaped in good faith by reference to the final resolution of the issues presented by this litigation. See Palmer v. District of Columbia, 26 App.D.C. 31 (1905). We affirm, therefore, the dismissal of the complaint in respect of the D.C. appellees responsible for enforcement of the Housing Regulations.
52
In the same way, it is intimated that the officers of both NCHA and HUD are not happy about the physical condition of these housing units but are doing the best they can with the limited funds at their disposal. HUD further suggests that the sanctions available for its use against NCHA not only rest in a discretion so broad as to render their use or non-use immune from judicial compulsion, but are also of such a character as to be far from being uniformly in the interest of the tenants themselves. There may well prove to be some practical, and perhaps legal, significance in these suggestions. But their precise contours are poorly defined in the present state of the record, and they will profit by the clarifying processes of trial. More to the point, they would appear to be most clearly relevant to remedies as distinct from rights. It is one thing to declare a duty and another to compel its performance under the threat of contempt. Appellants have, throughout their presentation to this court, exhibited a realistic appreciation of this distinction, and of the large discretion reserved to the trial court to withhold or to shape the relief given in the light of the practicalities emerging from the record.
53
We think it premature, however, to affirm the dismissal of any of these two groups of appellees from the case at this time because of the possibility that some, or any, relief may prove to be unwarranted or inappropriate.17 With jurisdiction established in the District Court, those are matters to be determined by it in the first instance.
54
The judgment of dismissal of the complaint is reversed, except as to the D.C. appellees responsible for the enforcement of the Housing Regulations; and the case is remanded for further proceedings consistent herewith.
55
It is so ordered.
Notes:
1
Senator Wagner's statement at the time the bill was introduced identified the relationship between adequate housing and the general welfare in these terms (81 Cong.Rec. 1521 (1937)):
"There exists in urban and rural communities throughout the United States, slums, blighted areas, or unsafe, unsanitary, or overcrowded dwellings, or a combination of these conditions accompanied and aggravated by an acute shortage of decent, safe, and sanitary dwellings within the financial reach of families of low income.
"These conditions are inimical to the general welfare of the Nation by (a) encouraging the spread of disease and lowering the level of health, morale, and vitality of large portions of the American people; (b) increasing the hazards of fire, accidents, and natural calamities; (c) subjecting the moral standards of the young to bad influences; (d) increasing the violations of the criminal laws of the United States and of the several States; (e) impairing industrial and agricultural efficiency; (f) lowering the standards of living of large portions of the American people; (g) necessitating a vast and extraordinary expenditure of public funds, Federal, State and local, for crime prevention, punishment and correction, fire protection, public health service, and relief."
2
The alleged defects relate to such things as broken windows and doors, missing screens, malfunctioning appliances, clogged toilets and tubs, roaches and vermin, inadequate heating, water seepage, and holes and cracks in ceilings and walls. Numerous affidavits from individual tenants in support of these allegations were filed with the motion for a preliminary injunction
3
One was on behalf of all defendants except Dugas and Jacobs, who are identified more particularly in Note 5infra. The other was styled as on behalf of Dugas and Jacobs, and also Washington and Fletcher "insofar as they are named as the superiors" of Dugas and Jacobs. Only the first such motion rested on sovereign immunity. Both claimed a failure to state a claim upon which relief could be granted.
4
The omitted items are responsive to a claim in the complaint that tenants have been overcharged for utilities. They recite that NCHA has discontinued the charges complained of, retroactive to April 1, 1968. It is appellants' position that this corrective action has not rendered their complaint moot in this particular, inasmuch as tenants remain liable for the overcharges imposed prior to April 1, 1968. The question of possible mootness is one appropriate for exploration upon remand
5
The brief does not specify precisely who the District of Columbia appellees are considered to be, but it presumably covers Walter E. Washington and Thomas Fletcher, who are sued individually and as Commissioner of the District of Columbia, and Assistant to the Commissioner of the District of Columbia, respectively, as well as Dugas and Jacobs, who are sued individually and as officers of the District of Columbia Department of Licenses and Inspections. Washington and Fletcher are members of NCHA, but they also appear to have ultimate responsibilities with respect to the administration of the Department of Licenses and Inspections. Although appellee Washington continues on occasion to be referred to as "Commissioner" in legal documents like the pleadings in this record, since the reorganization of the structure of the D.C. Government by Presidential order, he is currently referred most often as "Mayor" of Washington City or by the transitional term of "Mayor-Commissioner."
6
The District Court's conclusions of law are characterized by some obscurity in differentiating the various categories of defendants. The court nowhere refers in those conclusions to appellees Dugas and Jacobs although it states that Washington and Fletcher, insofar as they act as NCHA, "carry out a federal function and do not act as officials of the District of Columbia Government." It says that it is the suit against the officials of HUD and NCHA which is a suit against the United States, but it does not expressly except Dugas and Jacobs from its further conclusion of a want of jurisdiction for this reasonSee Notes 3 and 5, supra.
As appears hereinafter, the court's earlier conclusion, namely, that the complaint does not state a claim for which relief may be granted, again is all-embracing in its reference to the defendants, although the facts derived from the affidavits upon which this conclusion appears to rest are relevant in no way to Dugas and Jacobs, except as they be taken to establish, contrary to the allegations in appellants' affidavits and to the representations in the D.C. Government's own brief, that the housing projects were maintained in full compliance with the Housing Regulations.
7
The Administrative Conference of the United States, despairing of relief at the hand of a Supreme Court which has combined verbal denigration of the doctrine with continued implementation of it, has turned to the CongressSee Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 389 (1970). The statutory proposals to this end emanating from the Conference are currently embodied in S. 3568, 91st Cong., 2d Sess., which was the subject of hearings on June 3, 1970, by the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee.
8
The way was first pointed in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a case involving a state officer. The theory there evolved has been applied intact to the errant federal officerSee Cramton, Note 7 supra. Long before Ex parte Young, however, judicial authority was exercised through the writ of mandamus to compel public officials to adhere to the duties imposed upon them in their official capacities.
9
It is not certain that legal title to all the premises affected by this litigation is in the United States. Authority is conferred upon NCHA by 5 D.C.Code § 113 to lease properties from private owners for use in public housing; and the United States Housing Act, 42 U.S.C. § 1421b, contemplates that federal money may be used for this purpose. It appears that NCHA is now operating a number of leased units of this provenance, and there have been strong recommendations for significantly enlarged use of this approach
10
Appellants advert with some force to the anomaly that a housing project built and operated with the aid of federal funds by a non-D.C. local housing authority is not beyond judicial inquiry in a suit complaining of maladministration. Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968)See also Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968), Powelton Civic Homeowners Ass'n v. HUD, 284 F.Supp. 809 (E.D.Pa. 1968), and Western Addition Community Organization v. Weaver, 294 F.Supp. 433, (N.D.Cal.1968). It is also true that complaint may be made and pursued in both federal and state courts against state welfare officials for acts not in accordance with the federal standards prescribed for the administration of grants in aid. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
11
InNorwalk, Note 10 supra, the Second Circuit turned aside a protest against judicial scrutiny of allegedly invalid redevelopment location procedures as intolerable interference by the judicial branch with the executive by saying (395 F.2d at p. 929) that "[w]ith this case only at the pleadings stage, we do not think we should speculate on what specific remedies might be appropriate if plaintiffs' allegations are proved."
12
Appellants have insisted that, at the least, there has been a waiver of sovereign immunity in the case of the HUD appellees. They recite that Congress originally vested administration of the federally-assisted public housing program in the United States Housing Authority, the functions of which have since been assumed by HUD. Congress has said in 42 U.S.C. § 1405(b) that the Authority "may sue and be sued in its own name." Appellees are silent on this point in this court, although in the District Court they pointed to § 1404a which provides that the Authority "may sue and be sued only in respect of its functions under this chapter, and sections 1501-1505 of this title." They argued that the Authority's functions included no duty of any kind owing to appellants. The District Court did not rule on the point, nor do we in the light of the disposition otherwise made by us of the sovereign immunity issue
13
The Department's brief states one main point, namely, that the "district court has not been vested with jurisdiction to require that property owned by the United States be maintained according to the standards of the District of Columbia Housing Code." The argument under that rubric is constituted of three propositions, two of which are expressly related to sovereign immunity. The third is that federally owned property is not subject to the D. C. Housing Regulations
14
Reference has been made earlier to the fact that NCHA is authorized to, and does, lease privately-owned premises which it leases in turn to low-income tenants. Note 9supra. HUD requires of local housing agencies that leased facilities of this kind "shall meet any applicable provision of local codes." HUD Low Rent Housing Circular, Oct. 10, 1965, p. 6. NCHA, presumably in deference to this requirement, publicly represents that privately-owned premises leased by it for this purpose "must comply with the D. C. Housing Code." NCHA Informational Bulletin, Program of Leasing Private Accommodations, August 19, 1968, p. 2.
15
Even though Congress be taken as not intending that the Housing Regulations be criminally enforced against the NCHA and HUD appellees, it does not follow that the Housing Regulations were thought to have no significance for the D. C. housing projects. There are indications that the broad standard of "decent, safe, and sanitary" laid down by Congress was envisaged as taking its content from local housing codes, and was, therefore, to be interpreted and applied in the light of them. Our decisions in Klein v. District of Columbia, 133 U.S. App.D.C. 129, 409 F.2d 164 (1969), and Curtis v. District of Columbia, 124 U.S. App.D.C. 241, 363 F.2d 973 (1966), are instructive on this score. In these cases this court upheld the admission of provisions of the D. C. Building Code as evidence to establish negligence under the Federal Tort Claims Act. Although not directly applicable to the building construction in question, the court regarded the Building Code as a relevant gloss upon the broad negligence standard of the Tort Claims Act
16
Judge MacKinnon, dissenting on this point, views the complaint as failing to state a claim upon which relief could be granted because Congress has determined that the maintenance and repair policies of NCHA are nonreviewable. His concerns — lack of manageable standards for decision, inability of courts to oversee day-to-day agency activities, and considerations of increasing workloads — are matters only marginally related to jurisdiction. They are, rather, comprehended within the judicial discretion to grant or to withhold injunctive relief
Although the Congress presumably may on occasion create rights without providing a judicial remedy, the Supreme Court has declared the normal presumption to be to the contrary, namely, persons aggrieved by agency actions are not to be denied a judicial forum in the absence of a persuasive showing of a conscious Congressional design to do so. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). We are unable to find in the Congressional proceedings adequate rebuttal of this presumption. See also the expansive review provisions of the Administrative Procedure Act, 5 U.S.C. § 702 (Supp. V, 1970) ("A person suffering legal wrong because of agency action * * * is entitled to judicial review thereof.")
17
Judge MacKinnon refers to one named defendant as no longer in office, and there is at least one other known to us to be in the same situation,i. e., Fletcher. There may indeed be others, but this is a matter for the parties to get in hand on remand to the District Court. That is also the place where questions of jurisdiction over the person should be raised and determined in the first instance.
56
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
57
The opinion for the court concludes (1) that the doctrine of sovereign immunity does not stand as a bar to the exercise of jurisdiction in this case, and (2) that the complaint states a claim for which judicial relief may be granted. I respectfully dissent from this latter conclusion insofar as it upholds the attempt to obtain judicial review of the maintenance and repair policies and practices of NCHA.
58
As to the contention that the doctrine of sovereign immunity, as a blanket matter, precludes the exercise of jurisdiction in this case, it may be noted at the outset that the judicially developed concept of governmental immunity from suit has for a long time been under attack.1 The Supreme Court has joined in the assault at least to the extent of from time to time adding its own pronouncements against the principle,2 but however discredited the doctrine is considered to be by legal writers, in practice Supreme Court decisions have tended to expand its reach.3 The result of course is a condition of hopeless confusion in judicial opinions, and an invitation to Government attorneys to assert the applicability of the doctrine whenever the opportunity reasonably presents itself.4 A federal trial court is faced with a thankless task whenever it is called upon to decide whether the doctrine is applicable in a particular case.
59
It is difficult to reconcile the prior decisions on sovereign immunity on the basis of the abstract principles they announce. A close comparison of the facts in each case is the only approach that can be relied upon with any degree of confidence.5 The appropriate inquiry then is whether the factual circumstances of this case are sufficiently similar to those of any prior case involving the application of the sovereign immunity doctrine to require its invocation here.
60
Numerous attempts have been made, none with complete success, to separate sovereign immunity decisions into categories based on similar factual patterns.6 One grouping of cases which has gained a degree of general acceptance as a discrete category is the class of cases seeking to in some manner dispossess the Government of property of which it is in possession or to which it holds title. The argument has been pressed that cases which fall into that category should control decision in the present case, but the majority opinion refutes that contention. The short answer, as the majority opinion makes clear, is that the relief presently sought would not interfere with the Government's title to or possession of the public housing facilities in question.
61
An exhaustive examination of other possible categories and their similarities and dissimilarities to the facts of the present case would extend this opinion unnecessarily. It is sufficient to say that no case has been cited by the parties to this litigation, nor has independent research disclosed any, of sufficiently comparable factual circumstances to compel a holding that the doctrine of sovereign immunity rules out the exercise of jurisdiction here. To the contrary, assuming that the complaint otherwise makes out an appropriate case for judicial review of the official action in question, this court has held that the Administrative Procedure Act renders the doctrine of sovereign immunity inapplicable. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 385-386, 424 F.2d 859, 873-874 (1970); see also IWW v. Clark, 128 U.S.App.D.C. 165, 171 n. 10, 385 F.2d 687, 693 n. 10 (1967), cert. denied, 390 U.S. 948, 88 S.Ct. 1036, 19 L.Ed.2d 1138 (1968).
62
However, that conclusion, rather than disposing of this appeal, only sets the stage for the real inquiry which is called for. It remains to be seen whether dismissal of the suit, insofar as it seeks to subject the maintenance and repair practices and obligations of NCHA to judicial scrutiny and control, should be upheld on the alternate ground stated by the District Court. The District Court dismissed the complaint for two reasons: (1) that the doctrine of sovereign immunity deprived the court of jurisdiction in the matter and (2) that the complaint failed to state a claim for which relief may be granted. The majority opinion characterizes the District Court's conclusion as to (2) as relying in substantial part on its conclusion as to (1), and concludes that the complaint does state a claim for which relief may be granted. Assuredly, the order of the District Court is typical in that it does not specify exactly why it was thought that no claim for relief was made out by the complaint, and as the court suggests the brief on behalf of HUD and the NCHA officials offers little help on this point. But in my judgment the conclusion is inescapable that a valid reason does exist for upholding the dismissal of the complaint on that basis.
63
Uniformly, critics of the sovereign immunity doctrine have complained of the extent to which the necessity to wrestle with the doctrine distracts the courts from the real business at hand — the inquiry as to whether for other reasons judicial review should be sharply limited or entirely withheld in the particular circumstances of the immediate case.7 Nonreviewability issues are directed analytically to the question of whether a remedy exists "in appropriate federal courts of first instance," Stark v. Wickard, 321 U. S. 288, 316, 64 S.Ct. 559, 88 L.Ed. 733 (1943), and in appropriate instances are properly for resolution at the complaint stage of litigation.8 If it is determined that there is an absence of remedy, then the complaint fails to state a claim for which relief may be granted.
64
When all has been said and done, whether particular agency action is reviewable in the courts must largely depend on whether Congress intended that rights it has created be protected by judicial remedies. Stark v. Wickard, supra, 321 U.S. at 306, 64 S.Ct. 559. Though it remains true that as a general rule there is a presumption in favor of judicial review, see Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507 (1967), nevertheless there are exceptions to the rule, and each case must be resolved in light of its own peculiar circumstances.9 Whether review is sought under the authority of a specific statutory provision or pursuant to a general review provision such as section 10 of the Administrative Procedure Act, the essential question is the same: Has Congress directed that judicial review be available in the particular case?10 When Congress confers upon individuals certain rights as here, it is under no obligation to provide a remedy for infringement of those rights through the courts. See, e. g., Stark v. Wickard, supra, 321 U.S. at 306, 64 S.Ct. 559; Lynch v. United States, 292 U.S. 571, 582, 54 S.Ct. 840, 78 L.Ed. 1434 (1934); United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011 (1919); cf. Tutun v. United States, 270 U.S. 568, 576, 46 S.Ct. 425, 70 L.Ed. 738 (1926). Thus, it must be determined whether the right to judicial review was conferred by Congress in cases such as the present one.
65
To facilitate this inquiry, it is necessary to understand exactly what is placed at stake by the complaint in this case. Paragraph 9 of the complaint states that
66
plaintiffs contend that defendants have failed or refused to make necessary repairs in their dwellings. Defendants have failed to correct the following defects and conditions: broken windows and doors, absence of weather stripping, absence of door sills, holes and cracks in plaster, in walls, and in ceilings, defective furnaces, refrigerators and stoves, stopped-up commodes and tubs, presence of roaches and other vermin, peeling interior and exterior paint, loose and missing exterior siding, absence of heat during the winter months, water seepage and excessive dampness. Defendants have further failed and refused to maintain the common grounds of projects and have permitted the existence of abandoned automobiles, uncollected trash, broken glass, weeds and uncut grass.11
67
Paragraph 5 of the "Prayer for Relief" requests
68
That this Court permanently enjoin the defendants, and each of them, from failing and refusing to perform their duty to maintain and repair the premises of plaintiffs and their class in a decent, safe and sanitary condition. * * * The complaint does not allege that NCHA officials have acted in affirmative bad faith in carrying out their repair and maintenance obligations.12 The complaint does not allege that NCHA officials acted arbitrarily and capriciously in their asserted failure and refusal to repair and maintain the public housing facilities in question.13 The complaint does not allege that the asserted failure and refusal of NCHA officials to repair and maintain the housing facilities in question raises nonfrivolous constitutional issues.14 The complaint does not, as it realistically could not, allege that NCHA officials are under an absolute statutory obligation to repair and maintain the housing facilities in question under any and all circumstances. However, the complaint does allege that the asserted failure and refusal of NCHA officials to carry out repair and maintenance obligations violates "the United States Housing Act * * * the District of Columbia Alley Dwelling Law * * * and the Housing Regulations of the District of Columbia. * * *" The question then is: Does an action lie in a federal district court for declaratory relief and a mandatory injunction under these circumstances, or — stated another way — does the complaint identify the case as one seeking judicial review of nonreviewable agency action?
69
Those portions of the complaint quoted above identify the present case as partly one for judicial review of the conformance of agency action to statutory requirements and to the requirements of regulations promulgated pursuant to statutory authority. The absence of judicially discoverable and manageable guides to decision is, of course, one very significant factor which suggests that court review of agency action was not contemplated by Congress. Cf., e. g., Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Further, unless the determination the court is asked to make is one which can be made in the "usual common-law manner,"15 the inference is strong that judicial review was not intended. This suggests as a starting point for analysis an examination of the exact language of the applicable statutory sections and regulations.
70
Appellants first rely on the Housing Act of 1937, 50 Stat. 888, as amended, 42 U.S.C. § 1401 et seq., specifically the stated purpose of Congress to provide "decent, safe, and sanitary dwellings"16 for low-income families. These words must, of necessity, express the general objectives of Congress in instituting a federally-assisted public housing program; they cannot have been intended to impose a fixed, absolute obligation on the part of local public housing administrators.17 In addition, it should be noted that the quoted declarations of the statute obviously set forth broad future goals which even a cursory examination of the Act indicates were to be accomplished over a great many years.18 All recognize that such congressional declarations are meaningless if they are not backed by adequate annual appropriations. The true intent of Congress in such cases, to the extent it can be said to be controlling on administrative officials, is thus to be garnered not solely from broad policy declarations but also from the indications that Congress gives by its current supporting appropriations. To the extent that its appropriations are inadequate to carry out a declared policy, no clear duty can be said to be imposed upon the administrative officials to accomplish all the stated objectives of the program; in such circumstances such administrators may be forced by the realities of limited resources into making alternative judgments.19 Viewed in this light, the statutorily expressed intention of Congress provides little if any guidance to a court faced with the problem of determining whether day-to-day administrative implementation in a specific instance is or is not consistent with the statutory mandate.
71
Reliance is also placed on the District of Columbia Alley Dwelling Act, D.C. Code § 5-103 et seq., under which NCHA is constituted as a local housing authority for purposes of the Housing Act of 1937. Pursuant to the terms of the Alley Dwelling Act, there exists between NCHA and HUD a "Consolidated Annual Contributions Contract." Under that contract, NCHA is again obligated to provide "decent, safe, and sanitary dwellings" but in addition there is the obligation to "maintain each Project in good repair, order and condition." Although the language "good repair, order and condition" may add something to the meaning of "decent, safe, and sanitary," it does not add much. Both phrases are extremely general in terms, and are of little help in deciding concrete cases.20
72
Most importantly, it is asserted that the provisions of the District of Columbia Housing Code are applicable to public housing owned by the United States and operated by NCHA, and that these regulations provide precise standards by which to judge the adequacy of NCHA's repair and maintenance activities. Doubtless this is true if the Housing Code is applicable to low-income public housing in the District, but that conclusion is unwarranted. The opinion for the court finds it unnecessary to decide the question, but to my mind the correct resolution of the nonreviewability issue requires decision of that question.
73
In United States v. Wittek, 337 U.S. 346, 69 S.Ct. 1108, 93 L.Ed. 1406 (1949), the Supreme Court held that the District of Columbia Emergency Rent Act, 55 Stat. 788 (1941), was inapplicable to Government-owned defense housing in the District of Columbia, partly because a contrary result would have required the Court to "hold it [Emergency Rent Act] applicable also to the United States as the landlord of low-rent housing." 337 U.S. at 358, 69 S.Ct. at 1114. Although the holding in Wittek by itself does not resolve the question at hand, the Court there did indicate the nature of the inquiry which must be made: "The text, surrounding circumstances and legislative history of this District Act neither express nor imply a change in the authority already vested in permanent federal agencies in their management of the Government-owned housing in the District." 337 U.S. at 359-360, 69 S.Ct. at 1115.
74
As the opinion of the panel majority notes, the same Congress that enacted the D.C. Alley Dwelling Act also authorized the D.C. government to promulgate the D.C. Housing Code regulations. The opinion then concludes that since the applicability of the regulations would be consistent with the objective of providing "decent, safe, and sanitary dwellings" Congress probably could not have consciously rejected the notion that public housing in the District should be subject to the regulations, although the opinion does not decide the question. Yet there are persuasive reasons why Congress might not have intended any such result, and in fact did not intend such a result.
75
Congress, in implementing social welfare programs, sometimes proceeds explicitly "upon the premise that public bodies organized as nonprofit agencies to perform a public purpose could be entrusted with the responsibility of conducting their operations in the best public interest."21 It is not at all unlikely that Congress would have the same thought in mind without explicitly saying so in the course of enacting social welfare legislation such as the Alley Dwelling Act.22 Congress with good reason may well have thought the NCHA and its predecessors did not present the same need for official scrutiny and regulation as did private landlords.
76
That Congress did not intend that NCHA be subject to the Housing Code regulations seems clear. D.C.Code § 5-103(c), 48 Stat. 930 (1934) explicitly requires that construction, alteration or demolition by NCHA "be in accordance with the laws and municipal regulations of the District of Columbia." Thus when Congress has intended that the property of the United States be subject to District of Columbia regulation, it has explicitly so stated. As the Supreme Court noted in Wittek, supra, the operation and management of public housing in the District of Columbia was placed by Congress "in the control of a national or presidentially designated authority or official with authorization fitted to the particular and various purposes of that housing." 337 U.S. at 356, 69 S.Ct. at 1113. There would be no reason for Congress to assume that NCHA would be so deficient in implementing the policies of the Housing Act of 1937 and the Alley Dwelling Act that parallel supervision by another governmental agency would be necessary. This conclusion is supported by D.C. Code § 5-115, which provides generally for the cooperation of the District of Columbia government in effectuating the goals of the Alley Dwelling Act, and which authorizes the District and its instrumentalities to:
77
"(f) Enter into agreements with the Authority [NCHA] respecting the elimination of unsafe, insanitary, or unfit buildings. * * *"
78
An authorization to enter voluntary agreements for the purpose with NCHA is obviously inconsistent with an intention that District instrumentalities exercise a power to impose regulations designed to eliminate "unsafe, insanitary, or unfit buildings."
79
Even if the Housing Code regulations are not directly applicable to public housing in the District, appellants assert that indirectly the regulations can be resorted to by the court, as a gloss on the statutory standard of "decent, safe, and sanitary dwellings," to provide the necessary guidance to judicial decision-making. However, as pointed out above, the threshold inquiry is whether Congress intended that judicial review be available, and that determination must revolve in significant part around the question whether there exist congressionally furnished guides to decision. It is clear to me that such guidelines do not exist and that conclusion of itself comes close to disposing of this part of the case. The brief for appellants at p. 26 recognizes this, by admitting that "[t]his action is limited to ensuring compliance with specific standards of safe and sanitary housing. * * *" However, even absent congressionally furnished standards, if for other reasons it should clearly appear that Congress intended that a judicial remedy be available in the context of this case, then it might be proper for a court to resort to the Housing Code regulations for guidance. The question then recurs, did Congress intend that there be judicial review of NCHA's day-to-day maintenance and repair practices?
80
In addition to the absence of congressionally supplied guides to judicial decision, there are other reasons for concluding that judicial review was not intended by Congress. First, there is the fact — adverted to briefly by the majority opinion — that Congress has explicitly conferred upon HUD responsibility for overseeing the operations of local housing authorities, including NCHA. Through the "Annual Contributions Contract," HUD has the obligation to exert pressure on NCHA to secure its compliance with the contract and with the goals of "decent, safe, and sanitary dwellings." To aid in implementing these goals, statutory authority is conferred on HUD to make "such rules and regulations as may be necessary to carry out" federally-assisted low-rent housing programs. Housing Act of 1937, § 8, 50 Stat. 891, as amended, 42 U.S.C. § 1408. See Thorpe v. Housing Authority, 386 U.S. 670, 673 n. 4, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967) (per curiam). Thus if NCHA or any local housing authority fails to meet its obligations, HUD has several alternative remedies. It can reduce or terminate the annual federal contributions,23 increase the interest rate on loans or declare them in default,24 or even assume the management of a project.25 It is argued that HUD is either unable or unwilling to make effective use of these sanctions, but even assuming that is the case the fact remains that this is management machinery established by Congress which involves the exercise of a high degree of discretion, and its existence suggests that Congress did not intend that the machinery of the courts be available to superintend the day-to-day implementation of the low-income public housing program. If the sanctions available to HUD to induce compliance with the goals of the housing program are unsatisfactory, and if implementation of those goals by administrators falls short of what Congress has directed, it is presumably for Congress to take appropriate action to remedy the defects in the administration of the program.26
81
Second, there is the nature of the official action sought to be reviewed. Whatever the amenability of purely regulatory agency action to judicial scrutiny, the problems are entirely different when the official action in question consists of "running, evaluating, and regulating enterprises simultaneously."27 Courts are ill-suited to engage in overseeing day-to-day activities of a judgmental and all-encompassing nature, such as the repair and maintenance practices followed by public housing administrators in specific cases. Such activities have traditionally been viewed as beyond the reach of the courts.28
82
Finally, there is the very important consideration that courts should not be overburdened with an onslaught of litigation seeking review of administrative action.29 Where a decision in favor of reviewability would have the effect of substantially increasing the workload of the courts, it is not to be lightly inferred that Congress intended such a result. If every asserted failure to promptly and adequately repair and maintain public housing facilities is to be subject to review in the courts, there can be little doubt that a potential for extensive recourse to the federal courts exists. That circumstance militates against a conclusion that judicial review could have been intended by Congress in the circumstances of this case.
83
It is thus my judgment that insofar as the complaint in this case seeks judicial review of the maintenance and repair practices of NCHA, and declaratory relief and a mandatory injunction to control those practices, it fails to state a claim for which judicial relief may be granted. The remaining parts of the complaint however stand on a different footing. The complaint also seeks a declaratory judgment that the asserted failure to repair and maintain the housing facilities is a breach of the lease contract between tenants of the facilities and NCHA, and a breach of the "Consolidated Annual Contributions Contract," under which the appellants are entitled to sue as third-party beneficiaries. Also, the complaint seeks a declaration that certain charges for excess utility use violate specific statutory and regulatory requirements and are accordingly illegal.30 The complaint in these respects presents issues traditionally resolved by the courts, and thus states a claim for which judicial relief may be granted. I would thus remand the case to the District Court for investigation of the merits of these claims only.
84
In my view the action should also be dismissed as against Elder Gunter, formerly Deputy Assistant Secretary of Housing Assistance, Department of Housing and Urban Development, because of his resignation; and the return of the service of summons quashed as against Warren P. Phelan and Vincent A. Marino, respectively, Regional and Assistant Regional Administrators, of the Department of Housing and Urban Development, because they have their residences and offices in Philadelphia and are not subject to service of process in the District of Columbia. Fed.R.Civ.P. 4, 25. The United States District Court in the District of Columbia, unless specially provided, does not have jurisdiction of a suit against a person "who is not resident or found within the District." D.C. Code § 11-521.
Notes:
1
E. g., 3 K. Davis, Administrative Law Treatise ch. 27 (1958, Supp.1965); Cramton, Nonstatutory Review of Federal Administrative Action; The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 389 (1970); Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action: Some Conclusions from the Public-Lands Cases, 68 Mich.L.Rev. 867 (1970); Currie, The Federal Courts and the American Law Institute (pt. II), 36 U.Chi.L.Rev. 268 (1969); Byse, Proposed Reforms in Federal "Nonstatutory" Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479 (1962); Carrow, Sovereign Immunity in Administrative Law — A New Diagnosis, 9 J.Pub.L. 1 (1960).
2
See, e. g., National City Bank v. Republic of China, 348 U.S. 356, 359-360, 75 S.Ct. 423, 99 L.Ed. 389 (1955).
3
H. Hart & H. Wechsler, The Federal Courts and the Federal System 1151 (1953); Cramton,supra note 1, at 417; Scalia, supra note 1, at 868-869. For example, compare Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), with United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), and Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).
4
See Cramton, supra note 1, at 420-421.
5
See Scalia, supra note 1, at 918-920.
6
See, e. g., 3 K. Davis, supra note 1, § 27.05, at 571-576 (1958); Cramton, supra note 1, at 401-404; Scalia, supra note 1, at 880-882; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 705-732, 69 S.Ct. 1457 (1949) (Frankfurter, J., dissenting).
7
See Curran v. Laird, 136 U.S.App.D.C. 280, 288-289, 420 F.2d 122, 130-131 (en banc, 1969).
8
See, e. g., International Ass'n of Machinists and Aerospace Workers, AFL-CIO v. National Mediation Board, 138 U.S.App. D.C. 96, 111, 425 F.2d 527, 542 (1970).
Dismissal at the complaint stage is of course improper where the question of nonreviewability is necessarily "interrelated with the merits of the controversy," Peoples v. United States Dep't of Agriculture, 138 U.S.App.D.C. 291, 296, 427 F.2d 561, 566 (1970), but as will be seen this is not the case with the present litigation.
9
[E]ach statute in question must be examined individually; its purpose and legislative history as well as its text are to be considered in deciding whether the courts were intended to provide relief for those aggrieved by administrative action. Heikkila v. Barber, 345 U.S. 229, 233, 73 S.Ct. 603, 605, 97 L.Ed. 1371 (1953)
10
See, e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv. L.Rev. 308 (1967).
11
Under the lease between the parties the tenant agrees:
"3. (g) To keep the premises and adjacent grounds in good, orderly and clean condition * * *."
12
Cf. Pence v. Tobriner, 121 U.S.App.D.C. 282, 349 F.2d 717 (1965); Barger v. Mumford, 105 U.S.App.D.C. 188, 265 F. 2d 380 (1959).
13
See Gonzalez v. Freeman, 118 U.S.App. D.C. 180, 185, 334 F.2d 570, 575 (1964).
14
See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 929-930 (2d Cir. 1968).
15
Attorney General's Comm. on Administrative Procedure in Government Agencies, S.Doc.No.8, 77th Cong., 1st Sess. 80-81 (1941)
16
42 U.S.C. §§ 1401, 1402(1), 1402(2)
17
Cf. Rosado v. Wyman, 397 U.S. 397, 413, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 471, 476-481, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).
18
See S.Rep.No.84, 1949 U.S.Code Cong. Serv. pp. 1550, 1558-1560.
19
The legislative history of the Housing and Urban Development Act of 1968, Pub. L. 90-448, 82 Stat. 504, gives explicit recognition to problems of this nature:
"Progress [in the housing program] has been repeatedly interrupted by periods of tight money and budgetary pressures on the Federal Government."
H.R.No.1585, 1968 U.S.Code Cong. & Adm.News, p. 2873.
20
See generally Cahn & Cahn, The New Sovereign Immunity, 81 Harv.L.Rev. 929 (1968).
21
S.Rep.No.1656 to accompany H.R. 7664, p. 4, 83d Cong., 2d Sess. (1954)
22
Cf., e. g., Cappadora v. Celebrezze, 356 F.2d 1, 6 (2d Cir. 1966).
23
42 U.S.C. § 1415 (3)
24
Id. § 1415 (1).
25
Id. § 1413 (a).
26
Congress has indicated a continuing interest in questions of this sort, and has expressed the intention to take legislative action in response to problems as they are revealed. The Housing and Urban Development Act of 1968, § 5, 82 Stat. 477, provides:
"The Secretary [of HUD] shall, as early as practicable in the calendar year 1969 and in the calendar year 1970, make a report to the respective Committees on Banking and Currency of the House of Representatives and the Senate identifying specific areas of program administration and management which require improvement, describing actions taken and proposed for the purpose of making such improvements, and recommending such legislation as may be necessary to accomplish such improvements."
Section 110 of the same Act, 82 Stat. 497, sets up a National Advisory Commission on Low Income Housing, and § 110(b) (1) provides as follows:
"The Commission shall undertake a comprehensive study and investigation, to further the policy set forth in section 2 of this Act, of practicable and effective ways of bringing decent, safe, and sanitary housing within the reach of low income families. Such study shall evaluate existing housing programs designed to assist such families, and explore new ways by which public and private resources may be more effectively utilized in meeting the housing needs of such families."
27
Cahn & Cahn,supra note 20, at 969.
28
See generally, e. g., Cramton, supra note 1.
29
See Rosado v. Wynn, 397 U.S. 397, 435, 90 S.Ct. 1207 (1970) (Black, J., dissenting); Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv.L.Rev. 367, 371 (1968).
30
Under the lease the tenant agrees: "3 (h) * * * to pay,as additional rent when billed, charges for utilities used in excess of established allowances * * *." For non-payment of such charges NCHA proceeds in court by way of eviction. Appellants assert that failure to provide an "administrative hearing" in such cases is a denial of due process. NCHA by uncontested affidavit asserts that prior to institution of eviction proceedings the tenant is notified of the proposed action; the reason therefor and given an opportunity to make response. Only after a failure to respond or to justify alternative arrangements is the matter referred to court where the tenant may interpose any defense permitted by law and have a regular judicial trial. Under such circumstances, to my view, the requirements of due process are fully satisfied. Whether the charges made for utilities were excessive is another question.
| {
"pile_set_name": "FreeLaw"
} |
195 F.3d 358 (8th Cir. 1999)
Dominium Management Services, Inc., Plaintiff - Appellee,v.Nationwide Housing Group; Nationwide Development Group, LP, Defendants - Cross-Defendants - AppelleesPinnacle Group Realty Management Company, Defendant - Cross-Claimant - Appellant.
No. 98-2620, 98-2621
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: May 13, 1999Filed: October 28, 1999
Appeals from the United States District Court for the District of Minnesota.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
1
Dominium Management Services, Inc. brought this diversity action against Pinnacle Group Realty Management Company, Nationwide Housing Group, and Nationwide Development Group, LP (we refer to the latter two parties collectively as "Nationwide") seeking a declaratory judgment that it had a binding agreement with Nationwide under which it was to purchase Nationwide's real estate partnership interests. Pinnacle cross-claimed that Nationwide had breached an earlier similar contract. The jury found that Nationwide and Pinnacle entered into an enforceable contract, that Nationwide breached the agreement, and that Pinnacle was entitled to compensatory damages of $18.3 million. The district court granted in part Nationwide's motion for judgment as a matter of law as to Pinnacle's claim for management fees and accounts receivable, ruling that the evidence did not support the damages awarded for that portion of the claim. With respect to the jury's award for the value of the partnership interest, the court deducted the price Pinnacle would have paid, reducing the award to $2.8 million. The district court also conditionally ordered a new trial on damages unless Pinnacle consents to a remittitur of $15.5 million from the jury's award and to an entry of judgment in the amount of $2.8 million. Pinnacle appeals, arguing that the district court erred by granting judgment as a matter of law on the damages issues and by conditionally ordering a new trial. We reverse the partial grant of judgment as a matter of law and affirm the conditional grant of a new trial.
I.
2
Nationwide Housing Group, Inc. is the general partner of Nationwide Development Group, LP which, at the time in question, was the general partner and property manager of approximately forty real estate limited partnerships, which we will refer to as the Portfolio Partnerships. The Portfolio Partnerships were created to own and operate low-income housing that qualified for federal tax credits. Nationwide acted as property manager for the more than eighty apartment buildings owned by the Portfolio Partnerships, overseeing approximately 5,300 apartments. Various individuals and corporations invested in the Portfolio Partnerships by purchasing partnership units and becoming limited partners. In addition, Nationwide formed two limited partnerships with exclusively corporate and institutional investors, the Institutional Fund and the Opportunity Fund, to invest in the Portfolio Partnerships.
3
In 1996, Nationwide faced significant financial and operational difficulties. It had debts in excess of its assets and was unable to meet its operational expenses. Nationwide contracted for Dominium Management Services, Inc. to take over management of the majority of the Portfolio Partnerships' real estate for a period of one year. It also borrowed money from Dominium to meet its immediate cash needs.1 Nationwide's Institutional Fund investors formed an Advisory Group to oversee Nationwide in the management of the Institutional Fund portfolio. After Nationwide began looking for a buyer to purchase its interests and replace it as general partner in all of the Portfolio Partnerships, the Advisory Group was actively involved in the selection of a new general partner for the limited partnerships controlled by the Institutional Fund. In its quest to find a buyer, Nationwide ultimately solicited proposals from at least five firms, including Dominium and Pinnacle Group Realty Management Co.
4
On July 24, 1996, Dominium and Pinnacle met separately with the Advisory Group and Nationwide's three principals, presenting proposals for the acquisition of Nationwide's property management rights. Both Dominium and Pinnacle concluded that an opportunity to purchase Nationwide's general partnership interests also existed. Over the next several weeks, the companies continued to compete for the Nationwide deal.
5
On August 14, Dominium sent a proposal letter to Nationwide. After making changes to the letter, Laura Lynch, the executive vice president of Nationwide, discussed the Dominium proposal with Stan Harrelson, the president of Pinnacle. Pinnacle then sent a letter agreement to Nationwide on the 15th, and Nationwide proposed one change.
6
On August 16, Pinnacle submitted a "Revised Letter of Agreement" to Nationwide. Michael Weyrick, Nationwide's president, G. Davis Slajchert, its secretary, and Lynch signed the agreement on behalf of Nationwide and returned it to Pinnacle. On August 19, Harrelson and Lynch discussed preparing the documents necessary to implement their agreement. The next day, Dominium delivered a revised proposal to Nationwide. The Advisory Group met on August 20 and listened to presentations made by Pinnacle and Dominium. The institutional investors decided they preferred Dominium as the new general partner of the Institutional Fund partnerships, and the following day the Advisory Group informed Dominium and Pinnacle of this decision.
7
On the morning of August 22, Pinnacle wire-transferred $162,000 to Nationwide's attorney in connection with the Revised Letter of Agreement. The next day, Nationwide sent a letter to Pinnacle stating that it had chosen to pursue other alternatives because "Pinnacle was unable to perform under the revised letter of agreement dated August 16, 1996 between Pinnacle and Nationwide Housing Group." Nationwide returned the $162,000. Harrelson responded in a letter dated August 26 that asserted:
8
Your letter does not state how we are unable to perform. In truth, contrary to your claim, Pinnacle and its nominee, Triad, have performed and remain fully able to perform[.] Indeed, we have spent substantial time and money performing to date . . .[.] While we have performed, you have not. And now by your August 23, 1996 letter, you are attempting to renege on our agreement. We will not allow you to do so.
9
Meanwhile, on August 23 Nationwide's three principals signed a proposal from Dominium outlining terms under which Dominium would acquire Nationwide's interests and substitute for Nationwide as general partner in the Portfolio Partnerships. This litigation followed shortly thereafter.
10
Dominium sought a declaratory judgment that the agreement between it and Nationwide was valid and could proceed.2 Pinnacle filed cross-claims against Nationwide for breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel, and counterclaims against Dominium for tortious interference with contract and interference with prospective business relations. Pinnacle also sought preliminary injunctive relief, which the district court denied, in an attempt to prevent the Dominium-Nationwide deal from proceeding. After a seven-day trial, the jury returned a special verdict in Pinnacle's favor, affirmatively answering an interrogatory that Pinnacle and Nationwide entered into an enforceable contract for the acquisition of all Nationwide's partnership interests and assets and that Nationwide breached the contract.3 The jury awarded $18.3 million in compensatory damages. The jury penned notations in the margin following the damages interrogatory, including calculations that both Pinnacle and Nationwide agree show $7.3 million for lost property management fees, $6 million for accounts receivable, and $5 million for the partnership interest.
11
On post-judgment motions, the district court partially granted Nationwide's motion for judgment as a matter of law, holding that there was insufficient evidence to support an award of damages based on either property management fees or accounts receivable. The district court denied the motion with respect to the $5 million the jury awarded as the value of Nationwide's general partnership interest, subtracted the $2.2 million purchase price without dispute from Pinnacle, and arrived at a final figure of $2.8 million. The district court, in the event that we reversed its judgment as a matter of law, ordered a conditional new trial unless Pinnacle consents to a remittitur and to entry of judgment in the amount of $2.8 million.
12
This appeal followed, with Pinnacle arguing that the district court erred by entering judgment as a matter of law with respect to the management fees and the accounts receivable, and by granting the conditional motion for a new trial. Pinnacle also argues that erroneous evidentiary rulings and a misleading jury instruction require a new trial on its claims against Dominium. Finally, Pinnacle challenges the district court's failure to grant a declaratory judgment that the Dominium-Nationwide agreement is invalid. Nationwide argues that the district court erred by partially denying its motion for judgment as a matter of law because Pinnacle failed to prove breach of contract and because the jury award for the value of Nationwide's general partnership interest was not supported by the evidence. Nationwide also asserts that Pinnacle's claims were not pursued in the name of the real party in interest.
II.
13
We review a district court's grant of judgment as a matter of law de novo. Van Steenburgh v. Rival Co., 171 F.3d 1155, 1158 (8th Cir. 1999). Judgment as a matter of law is warranted when no "legally sufficient evidentiary basis" exists for a reasonable jury to have found in favor of a party on an issue on which the party has been fully heard. Fed. R. Civ. Pro. 50(a)(1). We must view the evidence in the light most favorable to the nonmoving party while giving that party the benefit of all reasonable inferences. See Van Steenburgh, 171 F.3d at 1158. Judgment as a matter of law is appropriate only when all the evidence points in one direction and there are no reasonable interpretations that would support the jury's verdict. See Mears v. Nationwide Mut. Ins. Co., 91 F.3d 1118, 1122 (8th Cir. 1996).
A.
14
California law, on which the district court and the parties rely, provides that after a contract is breached, "the measure of damages . . . is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." Cal. Civil Code 3300 (West 1999). However, "[n]o damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin." Cal. Civil Code 3301 (West 1999). When it is clear that a party has been damaged, uncertainty regarding the precise amount of damages is not a reason to deny recovery. See California Lettuce Growers, Inc. v. Union Sugar Co., 289 P.2d 785, 793 (Cal. 1955). "[T]he fact that the amount of damage may not be susceptible of exact proof or may be uncertain, contingent or difficult of ascertainment does not bar recovery." Id. See also GHK Assocs. v. Mayer Group, Inc., 274 Cal. Rptr. 168, 179 (Cal. Ct. App. 1990) (stating that "[w]here the fact of damages is certain, the amount of damages need not be calculated with absolute certainty.").
15
Pinnacle's evidence regarding property management fees included analyses prepared by Nationwide and Dominium estimating the gross management fees that could be earned by managing the partnerships' properties. When Nationwide was looking for a property manager in early July 1996, it gave Pinnacle a "Property Management Fee Summary" that estimated the gross property management fees to be $1,819,162 annually. The Dominium analysis of the Nationwide portfolio, given to Pinnacle by Nationwide during later negotiations, estimated the fees to be $1,950,513. Nationwide's assertion that there was insufficient evidence to justify the award of management fees collapses in light of both documents sent to Pinnacle by Nationwide representing the amount of fees that could be earned from the portfolio properties. Clearly, some amount of fees could be earned from managing the properties. Because Pinnacle showed the fact of damage, uncertainty regarding the amount of damage does not bar its recovery.
16
We agree with the district court's characterization of the award of lost property management fees as an award of lost profits. Future profits, by their nature, are more difficult to ascertain than other types of damages. Under California law, the amount of lost profits need not be established with certainty, and it is enough to show a reasonable probability that they would have been earned in the absence of the contract breach. See Nelson v. Reisner, 331 P.2d 17, 23-24 (Cal. 1958). In GHK Associates, supra, the breaching party claimed that awarding lost profits was too speculative even though its own projections indicated a range of potential net profits. 274 Cal Rptr. at 181. GHK Associates upheld the trial court's damages calculation that was based on actual profits, using the projections to support the conclusion that the injured party would not be overcompensated by the trial court's award. Id. In this case, Nationwide's own analysis estimated the amount of property management fees that could be earned annually from the properties, demonstrating a "reasonable probability" that Pinnacle could have earned some amount of fees in the absence of Nationwide's breach.
17
Officers of Pinnacle, Nationwide, and Dominium testified regarding net profits expected on the management fees and the number of years that the fees would be forthcoming. Harrelson testified that Pinnacle expected to net as much as 60% of the property management fees once it had acquired Nationwide's interests. Don Markey, the chief financial officer of Pinnacle, testified that Pinnacle expected to net $1.1 million annually on the Nationwide portfolio based on Nationwide's representation that the fees would total $1.8 million per year. At trial, Weyrick confirmed his deposition testimony that his estimate of net profit on the management fees would be around 50% of the gross profit. David Brierton, Dominium's president, testified that he expected the "gross margin" to be about 50% of the total management fees. Because overhead costs were still to be deducted from the "gross margin," the implication was that net profits would have been somewhat less than 50%. Armand Brachman, the vice president of Dominium, testified that Dominium earned between $300,000 and $500,000 in property management fees in 18 months after purchasing Nationwide's interests, and after an investment of $5 million that included the purchase price. Brachman also testified that he expected Dominium's relationship with the limited partnerships to last fifteen years or more based on the length of the federal tax credit program. Harrelson testified that he believed Pinnacle's tenure as property manager would have lasted a substantial period of time, possibly ten to fifteen years, also basing his assumption on the tax credit program.
18
From the damages calculations in the margin of the verdict form, it is evident that the jury found that Pinnacle would have earned $900,000 in management fees per year, multiplying $1.8 million in gross profits by 50% to arrive at net profits. To calculate the total property management fees that Pinnacle lost due to Nationwide's breach, the jury determined that Pinnacle would have had incoming fees for ten years after purchasing Nationwide's interests. It then discounted nine years of lost fees to present value, added this figure to the $900,000 Pinnacle lost prior to trial, and arrived at a total of $7.3 million in lost management fees. Viewing the evidence in the light most favorable to Pinnacle and giving it the benefit of all reasonable inferences, we conclude that the evidence was sufficient to allow a reasonable jury to arrive at this figure.
B.
19
As with the property management fees, the evidence presented regarding the value of the accounts receivable came from documents Nationwide gave to Pinnacle during the course of their negotiations. The accounts receivable consisted of money that the Portfolio Partnerships owed to Nationwide as the general partner. The first document Nationwide gave Pinnacle showed a total of $8,641,245 in loans receivable from partnerships. Harrelson testified that Pinnacle later obtained an updated list from Nationwide showing more than $9 million in accounts receivable. This document, preceded by a fax cover sheet indicating that it contained "NHG & NDG RECEIVABLES FROM PARTNERSHIPS," included a total of $9,363,231. A document entitled "Due to Nationwide Management Group May 31, 1996" listed amounts due to NMG, the in-house management company for Nationwide, as $420,340.61. Markey testified that Nationwide represented that its receivables were in the range of $9.5 to $9.7 million. He also testified that he believed Nationwide's representations as to the amount and the fact the receivables were collectible. Once Pinnacle showed the fact of damage, i.e., that Nationwide's breach prevented it from purchasing some amount of accounts receivable, the fact that the amount it could have collected was subject to debate does not bar its recovery.
20
Markey envisioned refinancing the real estate portfolio and using the proceeds to repay Pinnacle the money owed by the limited partnerships within three to six months after taking over the portfolio. Basil Rallis, an independent real estate consultant who had been working with Pinnacle on the Nationwide deal and who was experienced in this type of refinancing, testified that the portfolio could be refinanced in ninety days. Even Weyrick confirmed he had testified in his deposition "that those receivables would be collected in a fairly short period of time." Finally, Harrelson testified that Pinnacle was planning to forgive the $3.5 million that the Institutional Fund partnerships owed to Nationwide as the general partner. Viewing this evidence in the light most favorable to Pinnacle and giving it the benefit of all reasonable inferences, we conclude it was sufficient basis for a reasonable jury to award $6 million to Pinnacle for the value of the accounts receivable. Because the jury's award of management fees and accounts receivable had a legally sufficient evidentiary basis, we reverse the district court's grant of judgment as a matter of law on both damage awards.
III.
21
We review a district court's conditional grant of a new trial for abuse of discretion. Mears v. Nationwide Mut. Ins. Co., 91 F.3d 1118, 1123 (8th Cir. 1996). In passing on a motion for a new trial premised on the weight of the evidence, the district court may rely on its own reading of the evidence and grant a new trial even where substantial evidence exists to support the verdict. See White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). Ultimately, the district court must determine if there will be a miscarriage of justice if the jury's verdict is allowed to stand. Id. If the district court grants a new trial, it must articulate its reasons for reversing the jury's verdict. Id. at 781. As the reviewing court, we must be able to closely scrutinize the district court's decision in order to protect the right to a jury trial. Id. (quoting Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 187 (8th Cir. 1972), cert. denied, 410 U.S. 930 (1973)).
22
We recently reaffirmed the necessity of an adequate statement of the reasons for a district court's grant of a new trial. See Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir. 1999). In that case, the district court gave no reasons for its grant of a new trial other than "the reasons stated above," referring to those reasons it gave for granting judgment as a matter of law. Id. at 1161. We remanded the case to allow the district court to articulate its reasons so that we would be able to meaningfully review its grant of a new trial. Id. As we have emphasized before, the standards for granting judgment as a matter of law differ from the standards for granting a new trial. See White, 961 F.2d at 779.
23
In this case, after setting forth the standard for granting a new trial, the district court gave the following reasons for its decision to grant a new trial on damages: "[T]he jury's verdict shocks the conscience of the court, considering the complete failure of proof of lost profits which necessarily resulted in the jury's resort to speculation. The court determines that a miscarriage of justice would result if the court were to allow the jury's verdict to stand." Dominium Management Servs., Inc. v. Nationwide Hous. Group, 3 F. Supp. 2d 1054, 1064-65 (D.Minn. 1998). Admittedly, the court reiterated its statement on the lack of evidence of lost profits and the jury's resort to speculation.However, it first outlined the standard for granting a new trial and then followed with statements applying the standard. The district court's articulation of the new trial standard as well as its statement that the verdict "shocks the conscience" and would result in a "miscarriage of justice" convinces us that it applied the correct standard. See Frumkin v. Mayo Clinic, 965 F.2d 620, 625 (8th Cir. 1992) (noting the significance of the "verbal formulae" when granting a new trial).
24
We hasten to add that these "verbal formulae" are insufficient, standing alone, to justify the grant of a new trial. This is a close case. While the court could have engaged in a more extensive analysis of the evidence, it said enough to demonstrate that the proper standard was applied and to convince us that there was no abuse of discretion. We affirm the conditional grant of a new trial as to the damages for lost property management fees and accounts receivable.
25
The district court's opinion reduced the portion of the damages that were based on the value of the partnership interest, but left the remainder intact. Insofar as its order may be read to include the value of the partnership interest as an issue to be retried, the order lacks support for doing so, and this portion of the award must simply be affirmed.
IV.
26
Pinnacle asserts that it is entitled to a new trial on its tortious interference claim against Dominium. It bases this assertion on three errors alleged to have been committed by the district court: first, the exclusion of two letters Pinnacle sent to Dominium informing it of the Pinnacle-Nationwide agreement after Nationwide terminated negotiations; second, the admission of testimony that Dominium would have to fire employees hired to work on the Nationwide portfolio if it were to lose the case; and third, the jury instruction stating that: "If you determine that a party is entitled to damages, you are instructed not to compensate that party more than once for the same loss." We will not reverse a district court's denial of a new trial absent a clear abuse of discretion. McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994). The abuse of discretion standard also applies to our review of the district court's evidentiary rulings, Crane v. Crest Tankers, Inc., 47 F.3d 292, 294 (8th Cir. 1995), and to our review of jury instructions, Klisch v. MeritCare Med. Group, Inc., 134 F.3d 1356, 1358 (8th Cir. 1998). After reviewing the record, we find no abuse of discretion.We affirm the district court's denial of Pinnacle's motion for a new trial.
27
Pinnacle also argues that the district court erred by treating its motion for a declaratory judgment that the Dominium-Nationwide contract was unenforceable as an attempt to obtain specific performance of the Pinnacle-Nationwide agreement, and by subsequently denying the motion. We may affirm the district court's judgment on any ground supported by the record. See Wisdom v. First Midwest Bank, 167 F.3d 402, 406 (8th Cir. 1999) (quoting Stevens v. Redwing, 146 F.3d 538, 543 (8th Cir. 1998)).The declaratory judgment requested by Pinnacle would serve no useful purpose and would engender more uncertainty and controversy than it would resolve. We hold that the district court properly declined to grant Pinnacle's motion for a declaratory judgment.
28
In support of its contention that it is entitled to judgment as a matter of law on the issue of breach of contract, Nationwide argues that the Revised Letter of Agreement was merely an agreement to negotiate a contract in the future and as such was not binding. Whether an agreement is final or merely an agreement to agree depends upon the parties' intentions. See Beck v. American Health Group Int'l, Inc., 260 Cal. Rptr. 237, 241 (Cal. Ct. App. 1989). If the agreement is indefinite, the parties' conduct after execution and prior to any controversy may be considered to determine their intentions.See Oceanside 84, Ltd. v. Fidelity Fed. Bank, 66 Cal. Rptr. 2d 487, 492 (Cal. Ct. App. 1997). After viewing the record in the light most favorable to Pinnacle, we conclude that there was sufficient evidence from which a reasonable jury could find that Nationwide and Pinnacle intended to, and did, enter into a final agreement and that Nationwide subsequently breached the agreement.
29
The district court, in denying this portion of Nationwide's motion for judgment as a matter of law, rejected the argument that a clause in the Revised Letter of Agreement was a condition that required third-party approval before Pinnacle would be entitled to enforce the agreement. The court determined that the language of the clause was susceptible to different interpretations, depending on the credibility of contradictory extrinsic evidence, and accordingly was an issue for the jury to decide.Dominium Management Servs., Inc. v. Nationwide Hous. Group, 3 F. Supp. 2d 1054, 1062 (D.Minn. 1998). We agree with the district court's analysis.
30
Nationwide also appeals the district court's denial of its motion for judgment as a matter of law that there was insufficient evidence to support the jury's $5 million valuation of the general partnership interest in the Portfolio Partnerships. Lynch testified that an analysis done in late 1995 or early 1996 placed the value of this interest, including tax credits, cash flow, and distributions, at somewhere more than $5 million. Weyrick testified that his estimate of the value of the general partnership's interest in the tax credits was approximately one to two million dollars. We agree with the district court that there was sufficient evidence on which the jury could base its verdict. Applying the standards for judgment as a matter of law set forth earlier in our opinion, we affirm the district court's decision denying Nationwide judgment as a matter of law on the issues of contract breach and value of the general partnership interest.
31
Finally, Nationwide argues that the district court should have granted judgment as a matter of law in its favor because Pinnacle was not the real party in interest as required by Federal Rule of Civil Procedure 17(a). Nationwide contends that First West Companies and Triad Development, Inc., two companies that were to participate in a joint venture with Pinnacle if the deal with Nationwide had gone through, should have been parties to the action. We are not persuaded. The August 16, 1996 Revised Letter of Agreement that the jury found to be a binding contract was signed by representatives of Pinnacle and Nationwide. First West and Triad, though they may have been possible beneficiaries of the agreement, were not parties to it. The district court decided this issue on the ground that Nationwide had waived the defense because it failed to present it earlier, and then noted that Nationwide's argument failed on the merits. We agree.
V.
32
For the foregoing reasons, we reverse the district court's grant of judgment as a matter of law. We affirm the conditional grant of a new trial on the issue of damages as to property management fees and accounts receivable. We also affirm that portion of the award establishing damages for the partnership interest.
Notes:
1
The numerous factual complexities regarding this transaction need not be outlined in detail. The loans from Dominium were accomplished by promissory notes from Nationwide and its three principals and execution of pledge and security agreements with Dominium
2
Immediately afterward, Pinnacle filed an action in California state court, seeking injunctive relief enjoining Nationwide from selling its assets. It later voluntarily dismissed the action.
3
The jury also found that Dominium did not intentionally interfere with the Pinnacle-Nationwide contract
| {
"pile_set_name": "FreeLaw"
} |
327 B.R. 447 (2005)
In re Eldon BRAUN, Debtor.
Star's Edge, Inc. and Harry Palmer, Plaintiffs,
v.
Eldon Braun, Debtor.
Bankruptcy No. 04-33139-DM7, Adversary No. 04-3333 DM.
United States Bankruptcy Court, N.D. California.
July 27, 2005.
*448 Neil Rosenbaum, Esq., Law Offices of Neil Rosenbaum, San Francisco, CA, for Debtor.
MEMORANDUM DECISION RE NONDISCHARGEABILITY OF LIABILITY FOR COPYRIGHT INFRINGEMENT
DENNIS MONTALI, Bankruptcy Judge.
I. Introduction
Star's Edge, Inc. and Harry Palmer ("Plaintiffs") filed a Motion for Summary Judgment or Partial Summary Judgment seeking a determination that a federal district court judgment they recovered against Eldon Braun ("Debtor") is nondischargeable under section 523(a)(6).[1] The district court judgment against Debtor is for copyright infringement, libel per se, and attorney fees and costs. At a hearing held on June 17, 2005, this court orally announced its determination that the portion of the judgment based on libel per se is nondischargeable. For the reasons stated below, the court concludes that the portion of the judgment for copyright infringement is also nondischargeable. The award of sanctions, attorney fees and costs is also nondischargeable because it is ancillary to a nondischargeable debt.
II. Issue
Is an award of statutory damages for intentional copyright infringement a willful and malicious "injury" within the meaning of section 523(a)(6) even when the district court stated explicitly that there were no actual damages?
III. Facts[2]
In October or November of 2000, Debtor completed and released The Source Course, a manuscript designed to help its readers achieve increased consciousness *449 and enlightenment. Prior to producing The Source Course, Debtor had studied similar self-improvement techniques through the Avatar course that was produced and copyrighted by Plaintiffs. Debtor had advanced to the level of Avatar Master and, as such, obtained copies of confidential Avatar materials. Shortly thereafter, Debtor's relationship with Plaintiff Harry Palmer soured due to several disputes over Palmer's management of the Avatar program. Debtor left the organization, but never returned his copies of the Avatar course materials, and Palmer assumed the materials had been destroyed.
After publication of The Source Course, Plaintiffs filed suit against Debtor alleging copyright infringement and libel per se, among other claims. In a decision filed on July 15, 2003, the United States District Court for the Middle District of Florida (the "district court") found that Debtor had infringed Plaintiffs' copyright and committed libel per se. That court awarded Plaintiffs $36,000 in damages based on the copyright infringement claim, including $30,000 of statutory damages and an additional $6,000 for unjust enrichment reflecting Debtor's profits from The Source Course. The district court awarded Plaintiffs $20,000 for the libel per se claim and also ordered Debtor to pay sanctions and Plaintiffs' attorney fees and costs.[3]
The copyright infringement award was based on 17 U.S.C.A. 504(c), which states in pertinent part that plaintiff is entitled to "recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually . . . a sum of not less than $750 or more than $30,000 as the court considers just." The district court went on to state that its award of $36,000 "reflects the Court's conclusion that Palmer has suffered no actual damages as a result of the infringement." The district court's conclusion that there were no actual damages seems to be based on Palmer's admission that his sales and enrollment in Avatar courses had not declined because of availability of The Source Course. This court does not know whether Plaintiffs attempted to prove actual damages, only that Plaintiffs did seek statutory damages.
IV. Discussion
Under section 523(a)(6), a discharge under section 727 does not discharge an individual debtor from any debt ÔÇö "(6) for willful and malicious injury by the debtor to another entity or to the property of another entity". Debtor concedes that the district court found his infringement conduct to be willful and malicious. However, he claims that Plaintiffs suffered no injury as a result of his conduct, and that the debt should be discharged.
One Ninth Circuit Court of Appeals decision has held that a debt owed for court-ordered sanctions is nondischargeable under section 523(a)(6). Papadakis v. Zelis (In re Zelis), 66 F.3d 205, 210 (9th Cir.1995). In Zelis, the California Court of Appeal had ordered the debtor to pay sanctions to the plaintiffs and to the court due to the debtor's filing of frivolous appeals. The Ninth Circuit affirmed the bankruptcy appellate panel's decision to give collateral estoppel effect to the California Court of Appeal's findings regarding the imposition of sanctions. While part of the sanctions award compensated the *450 plaintiffs for attorney fees and costs, the California Court of Appeal ordered the debtor to pay an additional $4,000 to that court. Zelis v. Papadakis (In re Zelis), 161 B.R. 469, 471 (9th Cir. BAP 1993). In addition, the state court sanctioned the debtor $20,000 for filing a subsequent frivolous appeal. Id. These sanctions do not appear to serve as compensation for any ascertained amount of actual damages suffered by the court or by the plaintiffs. Instead, they were imposed because "filing a frivolous appeal necessarily causes harm to the opposing parties . . ." Zelis, 66 F.3d at 209. Despite the lack of a finding of specific injury to the plaintiffs, the Ninth Circuit held that the sanctions were imposed due to a willful and malicious injury and were thus nondischargeable.
An award of statutory damages for copyright infringement resembles the court-ordered sanctions of Zelis, not because of who received the sanctions, but because some portion of the sanctions did not serve as compensation for actual injury. Congress presumably allows recovery of statutory damages in lieu of actual damages in copyright infringement actions because it recognizes that the existence of financial harm caused by a copyright infringer is difficult to prove and difficult to quantify accurately. See Peter Pan Fabrics, Inc. v. Jobela Fabrics, Inc., 329 F.2d 194, 195-96 (2d Cir.1964) (stating that statutory damages allow "the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits"). Additional motives for imposing statutory damages might include deterring future infringements or punishing infringers. However, Congress labeled these damages as "statutory" rather than "punitive" which suggests that they are not solely awarded for the sake of punishment, but also as compensation for unproven harm. By allowing the recovery of statutory damages, Congress decided that it is appropriate to award damages in the absence of proven injury. This decision signals that an act of copyright infringement causes harm by its very nature. The court based its award of sanctions in Zelis on the similar premise that frivolous lawsuits necessarily cause harm, and the bankruptcy court found that the debt was attributed to a willful and malicious injury. Statutory damages for copyright infringement are also indicative of injury and, therefore, are nondischargeable in bankruptcy.
Although the Ninth Circuit's decision in Zelis predates the United States Supreme Court's decision in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), and the Ninth Circuit's decision in Carrillo v. Su (In re Su), 290 F.3d 1140 (9th Cir.2002), these more recent decisions do not undermine the reasoning of Zelis. Geiger holds that a debt attributable to an injury that results from recklessness or negligence is dischargeable even if the act that caused the injury was performed intentionally. Su holds that the court must apply either a subjective test when determining whether an act was performed with the intent to injure, or determine with substantial certainty that injury would occur. Geiger and Su both involve conduct that can result in more than one outcome. Geiger determines the dischargeability of a debt incurred in a medical malpractice judgment while Su involves a debt for a personal injury resulting from an auto accident. Performing a medical procedure and driving an automobile are activities that can be executed intentionally, but in a manner that is reckless or negligent with regard to the outcome. On the other hand, activities such as filing a frivolous lawsuit (as the debtor did in Zelis) or infringing a copyright (as Debtor did here) do not have uncertain or variable outcomes. *451 While a medical procedure can result in either healing or harm, and a physician may cause harm by negligence, copyright infringement is a categorically harmful activity. One cannot commit intentional copyright infringement and, through his negligence, cause financial harm to the copyright holder. Rather, harm necessarily follows from the act of infringing regardless of the infringer's state of mind when creating the infringing material. Therefore, the decision reached in Zelis and the decision reached today do not conflict with the holdings of the Geiger court or the Su court.
In another quite recent decision, the Ninth Circuit held that a judgment for libel could be attributed to a willful and malicious injury within the meaning of section 523(a)(6). Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1107 (9th Cir.2005). Since the debtor conceded that his actions were willful, the Sicroff court only determined that the debtor had caused a malicious injury to plaintiff. Id. In its findings, the court did not explicitly ascertain the existence of an actual, proven injury to the plaintiff. The court stated that, for an action to be malicious, it must necessarily cause injury, and that, since "Sicroff's statements were directed at Jett's professional reputation" they would "necessarily harm him in his occupation." Id. at 1106. The Ninth Circuit must have reasoned that if conduct necessarily causes harm, an independent finding of injury is unnecessary.[4]
Other bankruptcy courts have held that statutory damages for copyright infringement result in nondischargeable debts without expressly addressing the question of whether an award of statutory damages implies the existence of an injury. In Continental Map, Inc. v. Massier (In re Massier), 51 B.R. 229 (D.Colo.1985), a district court had awarded statutory damages to plaintiff for copyright infringement based on 17 U.S.C. 504(c). The bankruptcy court stated that "[t]he mere fact that the district Court awarded `damages' is proof that Plaintiff sustained injury and it matters not that these damages are labeled as `actual' or `statutory'." Id. at 231. The court also stated that "[w]here there has been a willful copyright infringement, the [d]ebt occasioned thereby is not dischargeable." Id. (citing Gordon v. Weir, 111 F.Supp. 117 (E.D.Mich.1953)).
Two other bankruptcy courts have held that a debt incurred from statutory damages is nondischargeable even though the court awarding the damages acknowledged that no actual damages were established. In Brzys v. Lubanski (In re Lubanski), 186 B.R. 160 (Bankr.D.Mass.1995), the court held that a debt incurred in a right to privacy suit was nondischargeable. A state court had awarded liquidated damages to plaintiff based on Massachusetts General Laws, chapter 272, 99 because the debtor had placed an eavesdropping device in plaintiff's office, thereby violating her privacy rights. The state court awarded these damages even though "no actual damages were established." Id. at 162. The Lubanski court interpreted the liquidated damages provision of the Massachusetts right to privacy statute as providing a remedy for "an injury that existed but could not be proven." Id. at 167. The court was "satisfied that, for the purposes of 523(a)(6), the damages awarded by the State Court were designed to remedy an actual injury." Statutory damages for copyright infringement are similar to unproven damages for violation of privacy in that actual damages resulting from such a wrong are difficult to prove, and legislatures *452 have created a statutory remedy for this reason.
In Cablevision Sys. Corp. v. Cohen (In re Cohen), 121 B.R. 267 (Bankr.E.D.N.Y.1990), the court declared a debt based on statutory damages nondischargeable as a matter of law on a summary judgment motion. Cohen involved a debtor who had distributed illegal decoders that intercept free cable television channels. The debtor's actions violated 47 U.S.C. 553, the Cable Act, which allows plaintiffs to recover either actual or statutory damages as the court considers just. In the district court suit, plaintiffs sought and won statutory damages because of the difficulty of proving actual damages. Id. at 269. The bankruptcy court stated that "[a]n award of statutory damages is not indicative of a lack of injury," and noted that statutory damages are "specifically intended for situations where it is virtually impossible to quantify the extent of an individual's injury and resultant monetary damages." Id. In rejecting the debtor's claim that no injury existed, the bankruptcy court stated that "under section 523(a)(6), the proper focus is not upon the injury but rather the focus is upon the nature of the conduct that gives rise to the injury." Id. at 272. Copyright infringement, like distribution of illegal cable television decoders, is harmful to the copyright holder by its very nature, and an award of statutory damages indicates that the court found the violation to be significant.
In addition, a bankruptcy court in Herman v. Remick (In re Remick), 96 B.R. 935 (Bankr.W.D.Mo.1987), tried a copyright infringement action on the merits, awarded statutory damages, and deemed the damages nondischargeable. The Remick court noted that "[i]n determining whether an injury to property has been committed, the standard is whether the defendants have committed an act against the plaintiffs' property rights which is actionable under the general law." Id. at 939. Under this standard, Debtor's copyright infringement was indeed actionable under law and, therefore, constitutes an injury to Plaintiffs' property.
Each of these cases supports the conclusion that statutory damages exist for the purpose of compensating plaintiffs for actual injuries that are difficult to prove. This court interprets the district court's statement that "[Plaintiff] has suffered no actual damages" merely to mean that Plaintiffs did not establish actual damages. Regardless of this distinction, an award of statutory damages for copyright infringement is indicative of an injury. For this reason, Debtor's willful and malicious copyright infringement results in a nondischargeable debt under section 523(a)(6).
Throughout section 523(a), the term "debt for", as found in "debt for willful and malicious injury" in section 523(a)(6), refers to any debt incurred as a result of that injury and does not limit the nondischargeable debt to liability for the injury. Cohen v. de la Cruz, 523 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998). Cohen v. de la Cruz held that a judgment awarding attorney fees and costs in a suit for fraudulently obtained rent money resulted in a nondischargeable debt under section 523(a)(2)(A). Id. at 223, 118 S.Ct. 1212. The Court based its judgment on the reasonable meaning of the various exceptions to discharge set forth in section 523(a) and on the policy concerns underlying these exceptions. This court concludes that, under Cohen v. de la Cruz, Debtor's obligation to pay sanctions, attorney fees and cost to Plaintiffs is also nondischargeable under section 523(a)(6).
V. Conclusion
For the reasons stated above, Plaintiffs' Motion for Summary Judgment will be *453 GRANTED. The debts for copyright infringement, libel per se, and sanctions, attorney fees and costs are nondischargeable under section 523(a)(6). Counsel for Plaintiffs should submit a separate order granting the motion for the reasons stated herein, and a judgment declaring the district court judgment nondischargeable. Counsel should comply with B.L.R. 9021-1.
NOTES
[1] Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules XXXX-XXXX.
[2] The following discussion constitutes the court's findings of fact and conclusions of law. Fed. R. Bankr.P. 7052(a).
[3] The attorney fees and costs are yet to be determined. Sanctions in the amount of $5,740 were awarded to Plaintiffs on September 17, 2002, and another $24,332.53 was awarded on November 27, 2002.
[4] In fact, the debt was declared nondischargeable before the state court trial had been completed and before damages had been quantified.
| {
"pile_set_name": "FreeLaw"
} |
180 Ill. App.3d 117 (1989)
535 N.E.2d 475
LANCE ERICKSON et al., Plaintiffs-Appellants,
v.
MUSKIN CORPORATION, Defendant-Appellee.
No. 1-87-3212.
Illinois Appellate Court First District (5th Division).
Opinion filed February 3, 1989.
Modified on denial of rehearing March 17, 1989.
*118 *119 *120 Corboy & Demetrio, P.C., of Chicago (Philip H. Corboy, Thomas A. Demetrio, and David A. Novoselsky, of counsel), for appellants.
Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Daniel K. Cray, and C. Barry Montgomery, of counsel), for appellee.
Affirmed in part, reversed in part, and vacated in part and remanded.
PRESIDING JUSTICE MURRAY delivered the opinion of the court:
Plaintiffs, Lance and Valerie Erickson, appeal from various orders and the net verdicts in a strict liability/assumption of the risk case. The following facts are basic to this appeal.
On the afternoon of July 4, 1981, Lance and Valerie attended a party at the home of Charles Langdon, Sr. The Langdon's had installed an above-ground pool designed and manufactured by defendant, Muskin Corporation, in 1974. The oval pool was 33 feet long, 18 feet wide, and the water depth varied from between 3 1/2 and 4 1/2 feet; it was deeper at the ends than in the middle as the result of an expandable liner. It is undisputed that Lance had consumed no alcoholic beverages.
Sometime during that afternoon, Lance climbed onto the deck and asked Eric Stenerson, who was in the pool, to move an inner tube over to the left side so Lance could dive through it. After making a head-first dive through the center of the inner tube, Lance hit his head on the bottom of the pool. He received a compression fracture of the fifth cervical vertabra, resulting in quadriplegia.
Subsequently, Lance brought a personal injury suit against defendant Muskin and the pool liner manufacturer, Swimline Corporation. His wife, Valerie, brought a loss of consortium suit against Swimline and the retail distributor, Marathon. Muskin brought a third-party action against Langdon, Sr., and Marathon. Before trial and pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.), the Erickson's entered into the following settlement agreement with all defendants except Muskin, as follows:
Lance Valerie
From Swimline Corporation: $25,000 $125,000
From Langdon, Sr.: 10,000 90,000
From Marathon Enterprises: 5,000 45,000
________ _________
$40,000 $260,000
*121 The trial court, in a nonfinal order, ruled that the gross amounts of the settlements were in good faith, but after Muskin objected to the allocation thereof, the court declined to rule on the good faith of the allocation.
The Ericksons then proceeded to trial only against Muskin on the strict liability allegation, i.e., failure to warn. The jury, in answer to a special interrogatory, found that the pool was unreasonably dangerous because of a lack of warning regarding the dangers of diving into it and that Lance's injuries were proximately caused by that unreasonably dangerous condition. In rendering its damages verdicts, the jury determined that Lance had assumed the risk to the extent of 96%. Based on Lance's assumption of the risk, the jury also reduced Valerie's consortium damages by 96%. The gross verdicts totaled $3,508,679 for Lance and $518,750 for Valerie. After the reductions for assumption of the risk, Lance received $140,347 and Valerie was awarded $20,750.
Thereafter, the court granted Muskin's post-trial motion to allocate the pretrial settlement funds in the same ratio as the total verdicts bore to each plaintiff: Lance = $262,500; Valerie = $37,500. The court then set off these settlement amounts against the net verdicts, resulting in awards of $0 to each plaintiff.
Plaintiffs appeal from the jury's net verdicts, the order granting defendant Muskin's post-trial motion for allocation of the pretrial settlement funds, and the denial of their post-trial motion. Plaintiffs raise the following issues on appeal: (1) whether the affirmative defense of assumption of risk should have been submitted to the jury in this, a failure to warn based on strict liability, case; (2) whether the jury's finding that Lance had assumed 96% of the risk was against the manifest weight of the evidence; (3) whether the jury instructions "fairly, fully and comprehensively" informed it of the relevant legal principles; (4) whether Lance's 96% assumption of risk was properly imputed to Valerie; and (5) whether the post-trial allocation of pretrial settlement funds was proper. Plaintiffs are alternatively requesting that this court grant various judgments notwithstanding the verdicts, a new trial, and vacatur of the allocation of settlement order. In order to determine several of these issues, additional facts from the record will be set forth in the discussion.
ASSUMPTION OF THE RISK
This case went to the jury on the single issue as to whether Muskin had a duty to warn of an unreasonably dangerous condition in its above-ground pools. The jury affirmatively answered defendant's *122 special interrogatory: "Were the plaintiffs' injuries and damages proximately caused by an unreasonably dangerous condition which existed in the Muskin swimming pool at the time it left the control of Muskin Corporation?" Muskin has not contested that finding in this appeal. Plaintiffs argue that an assumption of risk defense is legally and logically inconsistent with the jury's finding of a breach of a duty to warn and, thus, this defense should not have been submitted to the jury. We disagree with plaintiffs as to their legal inconsistency argument.
1 Illinois courts have recognized that the doctrine of assumption of risk is an affirmative defense in product liability cases. (Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.) Further, a duty to warn of an unreasonably dangerous condition extends to the use of the product by an ordinary person with the ordinary knowledge common to the community regarding the characteristics of the product. (Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 412 N.E.2d 959, citing Restatement (Second) of Torts § 402A, comment i (1965).) Accordingly, the duty to warn is determined using an objective standard, i.e., the awareness of an ordinary person.
2 In order to show that a plaintiff assumed a risk, a defendant has the burden of proof to demonstrate that plaintiff knew the product was in a dangerous condition and proceeded to use it in disregard to the known danger. (Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill.2d 64, 264 N.E.2d 170.) In determining whether a plaintiff assumed the risk in a strict liability case, the trier of fact focuses on the knowledge and conduct of that particular plaintiff, i.e., a subjective standard is applied. Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.
Prior to 1983, it would have been legally inconsistent to have found a defendant strictly liable in a products case it if was also determined that a plaintiff had assumed any of the risk. However, in that year and while this trial was proceeding, the supreme court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 N.E.2d 197, adapted to strict liability cases the comparative fault principles earlier established for negligence cases in Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886. The Coney court stated that application of comparative fault principles in strict products liability cases would not frustrate the policy reasons underlying strict liability, since "[T]he manufacturer's liability remains strict; only its responsibility for damages is lessened by the extent the trier of fact finds the consumer's conduct contributed to the injuries." Coney, 97 Ill.2d at 116, 454 N.E.2d at 202, citing Daley v. General Motors Corp. (1978), 20 Cal.3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380.
*123 However, the Coney court excepted from recovery-reducing conduct, i.e., assumption of risk or misconduct, "a consumer's unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect." (Coney, 97 Ill.2d at 119, 454 N.E.2d at 204.) In other words, mere contributory negligence would not act as a damage-reducer in strict liability cases. We agree with the view expressed in Justice Ryan's dissent in Simpson v. General Motors Corp. (1985), 108 Ill.2d 146, 483 N.E.2d 1, wherein it is considered inconsistent to not consider the causative fault of all parties in the apportionment of damages. If Illinois had followed the majority trend in these cases by adopting the principles of "pure" comparative fault (or causation) in strict liability cases, thus eliminating assumption of risk, we would not be confronted with resolving the oft-times extensive litigation issues arising out of such actions. Moreover, such causes of action accruing on or after November 25, 1986, are further complicated by enactment of a provision in the "tort reform" legislation in which a plaintiff's misuse or assumption of the risk to the extent of more than 50% will absolutely bar strict liability. Ill. Rev. Stat. 1987, ch. 110, par. 2-1116.
3 In any event, we must follow the rules delineated in Coney and elucidated in Auton v. Logan Landfill, Inc. (1984), 105 Ill.2d 537, 475 N.E.2d 817: where a defendant's product caused the injury but plaintiff's misuse or assumption of the risk contributed to the damages, comparative fault principles operate to reduce plaintiff's damage recovery in the amount which the trier of fact determines the plaintiff has caused by his conduct. The Auton court characterized this concept as "comparative damages." Auton, 105 Ill.2d at 546, 475 N.E.2d at 820.
We do note that no Illinois court has directly ruled on the issue of whether assumption of risk is appropriate in a failure to warn products liability case. However, we believe that this court's decision in Pell v. Victor J. Andrew High School (1984), 123 Ill. App.3d 423, 462 N.E.2d 858, when read in tandem with the policy considerations expressed in the Coney and Auton cases, does give some perspective on the issue. In Pell, a failure to warn case involving a mini-trampoline, an issue arose concerning the trial court's refusal to give assumption of risk and comparative negligence instructions to the jury. The Pell court held that the facts of the case were insufficient to establish that plaintiff's negligence rose to the requisite level for the application of the doctrines of misuse or assumption of the risk, and the requested instructions were therefore properly denied.
Plaintiffs are correct in stating that the Pell decision did not actually *124 consider whether assumption of risk was appropriate in failure to warn cases. However, we do not agree with them that it is "ludicrous" to take that decision one step further by declaring that where the facts support an assumption of risk defense even in a failure to warn case appropriate instructions should be given. In other words, we see no reason to differentiate between failure to warn cases and other types of strict products liability cases, if the policy considerations expressed in the above-discussed decisions are to have meaning.
4 Accordingly, under the applicable law (pre-1986), we find no legal inconsistency between the jury's verdicts and its answer to the special interrogatory. Using an objective, reasonable person standard, it found defendant Muskin strictly liable for its failure to warn of an unreasonable dangerous condition. Then, using a subjective standard what Lance actually knew about the danger of diving into this pool as he did the jury found that he had assumed 96% of the risk. This latter finding was applied only to the damages-reducing portion of its deliberations, not to the liability issue.
5 We cannot agree with plaintiffs that the affirmative answer to the interrogatory was the equivalent of finding that the lack of a warning on the pool was the sole proximate cause of Lance's injury. The answer reflected the jury's determination that Muskin breached its nondelegable duty to warn the ordinary user of the dangers of diving into the pool. However, the verdicts indicated that the jury further found that Lance knew of the danger involved in diving into 4 1/2 feet of water and did it anyway, thus assuming the risk. Therefore, although it may appear illogical for the doctrines of strict liability and assumption of the risk to coexist in the same cause, the Coney ruling leaves no doubt that the two doctrines, under the proper circumstances, may be legally compatible. As a result, we must conclude that the defense of assumption of risk was properly submitted for the jury's consideration.
6, 7 Plaintiffs also allege that Lance's conduct did not constitute assumption of the risk, contending that, at the most, he was negligent. They rely on the Coney rule that a person's unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect is not a damage-reducing factor. (Coney, 97 Ill.2d at 119, 454 N.E.2d at 204.) We must disagree with this argument. If there is some evidence from which a jury might infer plaintiff's assumption of the risk, then it is within the jury's province to determine that issue. (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 326 N.E.2d 74.) The test for determining whether a plaintiff has *125 assumed the risk was set forth in Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305. A subjective test is used, i.e., what plaintiff actually knew. Plaintiff's age, experience, knowledge, and understanding, in addition to the obviousness of the defect and the danger it poses will all be relevant factors for the jury's consideration. Furthermore, a jury need not rely solely on a plaintiff's statements as to what he knew, but instead should consider all of the evidence. In other words, a jury need not accept a plaintiff's testimony that he was unaware of the danger if the evidence shows the contrary. Williams, 45 Ill.2d at 430-31, 261 N.E.2d at 312.
8 A reviewing court cannot overturn a jury verdict unless it is clearly erroneous or against the manifest weight of the evidence, and the evidence must be viewed in a light most favorable to the appellee (here, Muskin). (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App.3d 524, 504 N.E.2d 772.) The record reveals that Lance was an air traffic controller and the son of an air traffic controller as the trial court stated, "born and bred into safety." At the time of his accident, Lance was a 25-year-old college graduate and was 6 feet 5 inches tall and weighed over 200 pounds. He played football, baseball, and basketball while in school and earned a basketball scholarship to the University of Wisconsin. He had taken swimming lessons when he was six or seven years old. He had been swimming for many years, learning to dive on his own. He admitted to diving off both low and high boards and to knowing about the relationship between water depth and the angle of dives. The jury heard the following responses while Lance was being cross-examined by defense counsel C. Barry Montgomery:
"Q. I suppose what I'm asking is you knew before this accident about diving from sides of pools; diving boards, low diving boards, high diving boards?
A. Yes.
Q. Now, I take it that before you would dive into a body of water, whether it be a high dive, low dive, side of a pool, you would want to know how deep the water was?
A. Yes.
Q. You wouldn't want to dive into water that was too shallow?
A. True.
Q. If you did, you could get hurt?
A. I suppose.
* * *
Q. * * * [Y]ou wouldn't dive from a high dive into four and a *126 half feet of water, would you?
A. No.
Q. So you knew something about the depth of the water in relation to diving?
A. Yes."
9 Also during the questioning, Lance answered that he wouldn't want to dive virtually straight down into 4 1/2 feet of water and agreed with counsel that he might break his neck if he did so. However, it is unclear as to whether Lance was speaking here of his knowledge prior to or subsequent to his accident. Lance also responded negatively when asked if he was aware of the depth of the water. In addition, the jury was aware that Lance was 6 feet 5 inches tall and had been walking around in the water for at least an hour before his accident. It was also known that Lance directed that an inner tube be specifically placed so he could dive through the center and, by his own words, that he made a head first, hands first dive through the inner tube.
The jury did not have to accept Lance's denial of knowing the dangers of diving head first into the pool. It could evaluate all of the evidence in concluding that Lance knew a head-first dive into shallow water could result in serious injury. Moreover, plaintiff's use of expert testimony to show that the public may not be aware of the hazards of diving into an above-ground pool is not relevant to what Lance himself knew. Lance's knowledge, or lack thereof, and whether he had assumed all or part of the risk was a question of fact to be resolved by the jury. Viewing the evidence in its aspect most favorable to Muskin, we cannot say that the jury's determination, based on the above facts, that Lance assumed 96% of the risk was against the manifest weight of the evidence.
JURY INSTRUCTIONS
10, 11 Plaintiffs next object to the trial court's refusal to give various instructions to the jury. A party has the right to have the jury informed about the issues presented, the applicable legal principles, and the facts that must be proved to support a verdict. (Korpalski v. Lyman (1983), 114 Ill. App.3d 563, 449 N.E.2d 211.) While the trial court is required to instruct the jury on all issues by the evidence, the determination as to what issues actually have been raised is within the court's discretion. (Lounsbury v. Yorro (1984), 124 Ill. App.3d 745, 464 N.E.2d 866.) The instructions should not mislead the jury or prejudice a party, nor may they be argumentative. (Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App.3d 1018, 524 *127 N.E.2d 615.) In reviewing the propriety of jury instructions, they are to be taken as a whole in determining if they are clear enough so as not to mislead and whether they fairly and accurately state the applicable law. (Ralston v. Plogger (1985), 132 Ill. App.3d 90, 476 N.E.2d 1378.) Furthermore, even if an instruction was erroneously refused by the trial court, reversal is required only where prejudice is shown. (Friedman v. Park District (1986), 151 Ill. App.3d 374, 502 N.E.2d 826.) After examining the instructions given, as a single unit, we conclude that the trial court did not err in refusing plaintiffs' tendered instructions.
12 Plaintiffs claim that the jury should have been given their non-Illinois Pattern Jury Instruction (IPI): "[p]laintiff's inattentive, ignorant or awkward failure to discover or guard against the unreasonably dangerous condition of the swimming pool does not constitute assumption of the risk and is not a damage reducing factor." They correctly state that this instruction accurately reflects current law, as expressed in Coney and its progeny, and contend that its omission resulted in the jury being denied guidelines necessary to weighing Lance's conduct against Muskin's liability. The record is cited in purporting to show that Muskin advanced the theory that Lance's actions had been "foolish," "improper," and "dumb," thus requiring that the jury be instructed as to the law regarding mere negligence in strict liability cases. However, we found that the above-mentioned words were each used perhaps once or twice by defendant in over 2,000 pages of transcript. None of those instances could be said to constitute the advancement of a theory. Muskin throughout the trial contended that Lance actually knew of the dangers associated with diving into 4 1/2 feet of water. Moreover, according to our supreme court, there can be no comparison of one party's negligence with another party's strict liability. Auton v. Logan Landfill, Inc. (1984), 105 Ill.2d 537, 475 N.E.2d 817.
13 We first note that, pursuant to Supreme Court Rule 239(a) (107 Ill.2d R. 239 (a)), IPI instructions should be given unless they inaccurately state the law. Only when the IPI does not contain a proper instruction on the subject may a non-IPI instruction be given (Fravel v. Morenz (1986), 151 Ill. App.3d 42, 502 N.E.2d 480.) In 1986, IPI instructions were supplemented with a chapter on strict liability. (Illinois Pattern Jury Instructions, Civil, No. 400.00 et seq. (2d ed. Supp. 1986) (hereinafter IPI Civil 2d No. 400.00 et seq. (Supp. 1986).) The lengthy introduction to chapter 400 contains a discussion on recent changes in strict liability law, including the supreme court's decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 *128 N.E.2d 197. After analyzing the Coney decision, the drafting committee concluded that its modified instructions, based on the comparative negligence instructions, were sufficient in assumption of risk cases. (IPI Civil 2d No. 400.00 (Supp. 1986).) The committee also recommended that no instructions on the duty to warn be given (IPI Civil 2d No. 400.07 (Supp. 1986)), and that further instructions, other than those given in chapter 400, should not be given regarding the evidentiary facts used in determining whether there was an assumption of the risk. IPI Civil 2d No. 400.05 (Supp. 1986).
The trial court did give the following chapter 400 instructions: No. 400.04 definition of products liability proximate cause; No. 400.10 due care not a defense; No. 400.06 definition of "unreasonably dangerous"; No. 400.03 reduction of damages for assumption of risk; No. 400.02 burden of proof as to proximate cause; No. 400.01 issues raised by pleadings (failure to warn, assumption of risk); and No. 400.0-3.01 definition and burden of proof as to assumption of risk. IPI Civil 2d No. 400.00 et seq. (Supp. 1986).
These IPI instructions, along with others given, clearly advised the jury as to the issues presented during trial and the applicable law; no others were needed. Furthermore, we agree with the trial court that plaintiffs' instruction, taken from the Coney decision, was argumentative on its face, especially where the jury was informed that what Lance actually knew was crucial to an assumption of the risk finding. It stands to reason that if a person did not actually know of a danger, then there would be no assumption of the risk and no reduction of damages. It is entirely proper to refuse an instruction which accurately states the law if it is misleading or argumentative. Chakos v. Illinois State Toll Highway Authority (1988), 169 Ill. App.3d 1018, 524 N.E.2d 615.
14 Plaintiffs also contend that refusal of six other instructions was error. These instructions concerned the issue of Muskin's liability. However, since Muskin was found liable, we fail to understand how plaintiffs were prejudiced by the omissions. Plaintiffs' argument is that failure to give the proffered instructions (e.g., failure to warn is a nondelegable duty, presumption that a warning would have been read and heeded), denied the jury knowledge of applicable law necessary for it to fairly balance Lance's conduct against Muskin's conduct.
We disagree with plaintiffs. What Muskin did or did not do is not relevant to the issue of Lance's actual knowledge. "The manufacturer is liable without regard to negligence, and consequently no comparison can be made insofar as liability is concerned between the conduct of the manufacturer and that of the injured party." (Auton v. Logan *129 Landfill, Inc. (1984), 105 Ill.2d 537, 546, 475 N.E.2d 817, 820, explaining Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 N.E.2d 197.) The finding of a 96% assumption of risk applied only to how much Lance actually knew regarding the dangers involved in diving as he did; the elements of strict liability were irrelevant to this finding.
We therefore find that the instructions given to the jury adequately informed the jury and the court's refusal of certain other instructions was not reversible error.
VERDICT REDUCTION
15 Plaintiffs next argue that Valerie's claim for loss of consortium should not have been reduced by the amount of Lance's assumption of the risk. We agree with plaintiffs. The precise question as to whether a consortium claim is independent or derivative, in relation to damages in assumption of the risk cases, since the adoption of comparative fault principles has not been directly answered. However, our determination of this issue is guided by a trilogy of supreme court decisions revolving around consortium claims.
In Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210, it was held that a wife's loss of consortium claim was not barred by the two-year statute of limitations applicable to her husband's personal injury action, even though the defendant had argued that the wife's claim should be barred because it was derivative of the husband's cause. The Hammond court also denied punitive damages in consortium cases because "the injury is `indirect,' or derivative in nature, and recovery in such actions is intended only as compensation." Hammond, 97 Ill.2d at 212, 454 N.E.2d at 219.
Subsequent to Hammond, the court decided the case of Brown v. Metzger (1984), 104 Ill.2d 30, 470 N.E.2d 302, wherein it ruled that an injured spouse's settlement release for his personal injury claim did not bar his wife from proceeding with her loss of consortium suit. The court noted that in the past, loss of consortium actions were derivative (see, e.g., Mitchell v. White Motor Co. (1974), 58 Ill.2d 159, 317 N.E.2d 505; Rollins v. General American Transportation Corp. (1964), 46 Ill. App.2d 266, 197 N.E.2d 68 (cases relied on by Muskin).) The Brown court, continued, "[m]ore recently, however, this court has spoken to the contrary in Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 208-09, * * *. The clear implication of that holding is, of course, that the right of the deprived spouse to recover does not depend on whether the impaired spouse's cause of action is still viable." Brown, 104 Ill.2d at 38, 470 N.E.2d at 306.
*130 More recently, the court in Page v. Hibbard (1987), 119 Ill.2d 41, 518 N.E.2d 69, considered whether a defendant employer could enforce a workers' compensation lien against settlement proceeds received by an injured employee's wife for release of her loss of consortium claim against a third-party tortfeasor. Although the decision was based, in part, on the provisions of the relevant workers' compensation statute, the Page court also relied on the Hammond and Brown decisions, stating that a consortium action "is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society." Page, 119 Ill.2d at 48, 518 N.E.2d at 72.
In addition, several appellate court decisions have relied on this "independent" concept. It has been held that a loss of consortium claim is a separate cause of action for insurance purposes. In Giardino v. Fierke (1987), 160 Ill. App.3d 648, 513 N.E.2d 1168, a wife successfully argued that her loss of consortium injury was separate from her husband's claim for bodily injuries within the meaning of an insurance policy. Although the court based its holding upon the policy language, it indicated that the consortium claim was not dependent on her husband's claim. It has also been stated that the elements of injury to companionship and conjugal relations in a loss of consortium claim are personal to the claimant and cannot be included in the other spouse's jury award for personal injuries. Pease v. Ace Hardware Home Center (1986), 147 Ill. App.3d 546, 498 N.E.2d 343.
Admittedly, these cases do not directly answer the question as to whether Valerie's verdict should have been reduced by the 96% assumption of the risk attributed to Lance. In the cases discussed above, the terms "derivative" and "independent" are both used to describe loss of consortium claims. However, the above decisions are indicative of a shift away from the pre-Alvis (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886) concepts that all contributory negligence of an injured spouse was imputed to the spouse claiming loss of consortium. It appears that the supreme court considers consortium claims derivative of the spouse's personal injury action only as to the requirement that the injured spouse must establish liability. Once liability is established, the consortium claim is an independent action personal to the claimant. We believe, therefore, that once liability is proved, it is fair and reasonable to compensate a loss of consortium claimant on the basis of his or her actual injuries without deducting any amount for the negligence of another even that of a spouse.
16 In other words, the jury found that Muskin was liable to *131 Lance and, consequently, Muskin was also liable to Valerie since her injuries occurred as a result of Lance's injuries; thus, her claim is derivative. However, once this derivative basis for Valerie's injuries is established, her injuries, which are different from Lance's and personal to Valerie, are independent and she should therefore be independently compensated on the basis of her loss. Accordingly, Muskin is liable to Lance for his injuries minus his assumption of the risk percentage. Muskin is also liable to Valerie for the injuries incurred solely by her. Therefore, Valerie's verdict should not have been reduced because of Lance's assumption of the risk.
ALLOCATION OF SETTLEMENT FUNDS
17 In their final point, plaintiffs contend that the trial court erred in granting Muskin's post-trial motion for allocation of pretrial settlement funds on a pro tanto basis, i.e., in the same ratio that the total verdicts bore to each plaintiff (7 to 1 ratio). In applying a pro tanto rule, Muskin, and the trial court, were guided by an Iowa Supreme Court decision, Duggan v. Hallmark Pool Manufacturing Co. (Iowa 1986), 398 N.W.2d 175, which we find is inapposite to the present case. Plaintiffs in the Duggan case were a husband seriously injured in a diving accident and his wife and children. After trial against one of the defendants, pretrial settlements with other defendants were adjusted so as to reflect the jury's assessment of fault percentages in a special verdict. However, the Duggan court specifically noted that the pro tanto rule applied only to causes of action accruing before the adoption of comparative negligence in Iowa. These latter cases would use a pro rata basis for settlement distributions.
It is apparent that the Duggan allocation formula is inapplicable here. In adopting comparative negligence, our supreme court said that fairness requires that a plaintiff's damages be "reduced by the percentage of fault attributable to him." (Emphasis added.) (Alvis v. Ribar (1981), 85 Ill.2d 1, 25, 421 N.E.2d 886, 897.) Since we have found that Lance's assumption of the risk is not to be imputed to Valerie so as to cause a reduction in her damages verdict, the same principle should be applied to a good-faith settlement entered into before trial. Moreover, there is no evidence in the record that the jury entered its verdicts to a "family unit"; separate verdicts were entered as to each plaintiff. (See Eaton v. Jackson (1984), 128 Ill. App.3d 893, 471 N.E.2d 651.) It is also true, as plaintiffs assert, that such a hindsight reallocation would operate to frustrate the policy underlying the Contribution Act by discouraging pretrial settlement agreements. See Perez v. Espinoza (1985), 137 Ill. App.3d 762, 484 N.E.2d 1232.
*132 Accordingly, we conclude that it was error to wait until the verdicts were delivered and to then allocate the pretrial settlement funds in the same ratio as the verdicts bore to each plaintiff.
In summary, we affirm the jury's finding of Lance's assumption of risk to the extent of 96% and his resulting net verdict of $140,347. We vacate that portion of the verdict entered in favor of Valerie which reflected a 96% reduction in her gross verdict of $518,750. We reverse the trial court's order allocating the pretrial settlement funds in the ratio that the total verdicts bore to each plaintiff. We remand this cause with directions that the trial court enter judgments in the net amounts of $100,347 for Lance and $258,750 for Valerie, such sums reflecting the appropriate settlement setoffs to be corrected net verdicts.
Affirmed in part; reversed in part; vacated in part and remanded with directions.
LORENZ and PINCHAM, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
911 F.2d 733
Securities and Exchange Commission, Securities InvestorProtection Corporationv.Financial House, Inc., Robb (David, Florence)
NO. 89-2361
United States Court of Appeals,Sixth Circuit.
AUG 15, 1990
1
Appeal From: E.D.Mich.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
NO. 07-02-0063-CR
NO. 07-02-0064-CR
NO. 07-02-0065-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 5, 2002
______________________________
GREGORY RAY ROY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NOS. 41,767-B, 41,768-B, 41,790-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Gregory Ray Roy filed notices of appeal in the referenced matters in
which his probation was revoked in Cause No. 07-02-0065-CR and his guilt was
adjudicated in Cause Nos. 07-02-0063-CR and 07-02-0064-CR. Because the clerk's
record had not been filed due to appellant's failure to pay or make arrangements to pay
for the record, we abated the appeals to the trial court for a hearing. However, appellant
has now filed a motion to dismiss his appeals. That motion has been signed by both
appellant and his attorney.
Because appellant has complied with the requirements of Rule of Appellate
Procedure 42.2(a) and because this court has not delivered its decision prior to receiving
the motion, the motion is hereby granted. Having dismissed the appeals at appellant's
request, no motions for rehearing will be entertained, and our mandates will issue
forthwith.
John T. Boyd
Chief Justice
Do not publish.
NO. 07-10-00288-CR
IN THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL B
JUNE
15, 2011
BIENVENIDO ORTEGA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE CRIMINAL COURT NO. 1 OF
TARRANT COUNTY;
NO. 1158036D; HONORABLE SHAREN WILSON, JUDGE
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
After
the trial court had overruled appellant, Bienvenido
Ortegas, motion to suppress evidence, appellant pleaded guilty to an
indictment alleging possession with intent to deliver a controlled substance,
methamphetamine, of 200 grams or more, but less than 400 grams.[1] The trial court sentenced appellant,
pursuant to a plea bargain, to confinement in the Institutional Division of the
Texas Department of Criminal Justice (ID-TDCJ) for a period of 10 years and
assessed a fine of $500. Appellant
perfected his appeal and contends that the trial court committed reversible
error when it overruled his motion to suppress the evidence. We affirm.
Factual and Procedural Background
In
May of 2009, the Tarrant County Narcotics Unit executed a search warrant on the
home of Ronald Gore. In the search that
followed, deputies seized controlled substances and cash. As a result of the search, Gore and his wife
were arrested and taken to jail.
Subsequently, Gore, with the assistance of his attorney, entered into an
agreement to become a confidential informant to Deputy Doug Deweese. After agreeing to become a cooperating
witness, Gore was asked if there were any other drugs at his home of which he
needed to advise the deputies. Gore
replied that, while in jail, an additional amount of marijuana,
methamphetamine, and a gun had been delivered to his home. Deputies were able to retrieve the additional
contraband, which were located where described by Gore.
Gore
testified at the suppression hearing that, after getting out of jail, he got a
call from appellant stating that he, appellant, was coming from Dallas to Fort
Worth bringing Gore an additional one-quarter to one-half pound of
methamphetamine. Gore contacted Deweese and provided the deputies with an accurate
description of appellant, the color and make of the vehicle appellant would be
driving, how the contraband would be stored, where the delivery was to take
place, and the time of the delivery.
Gore indicated that appellants brother would be a passenger in the
vehicle with appellant. However, this
fact turned out to be incorrect as another unrelated person was in the vehicle
with appellant.
Based
upon the information provided by Gore, Deweese and
other deputies went to the indicated location and awaited appellants
arrival. According to Deweese, appellant appeared exactly where Gore said he
would and within five minutes of the exact time Gore advised appellant would appear. Based upon the information provided by Gore,
appellant was detained, and the vehicle was searched. Two bags of suspected crystal methamphetamine
were located in a metal box which was attached by magnets to the console of the
truck appellant was driving. Appellant
was arrested and indicted for the offense of possession of a controlled
substance, methamphetamine, in an amount of 200 grams or more, but less than
400 grams.
Subsequently,
appellant filed a motion to suppress the results of his detention and search of
his truck. The trial court conducted an
evidentiary hearing regarding the detention and search and ruled that the
search was supported by probable cause to believe that appellant was engaged in
or about to engage in the commission of a felony offense. Therefore, the trial court overruled
appellants motion to suppress. At the
hearing on the motion to suppress, the trial court dictated findings of fact
and conclusions of law. These were
subsequently reduced to writing, and the trial court signed the findings and
conclusions and had them filed in the record of these proceedings.
After
the trial court overruled his motion to suppress the evidence of the search,
appellant entered a plea of guilty pursuant to a plea bargain and was sentenced
to serve a term of confinement of ten years in the ID-TDCJ and pay a fine of
$500. Appellant gave notice of appeal,
and the trial court certified appellants right of appeal as to the trial
courts ruling on the motion to suppress the evidence seized during the search
of appellants truck. Appellant brings
forth four issues, which when read carefully are all complaining that the trial
court erred in finding that there was probable cause for the officers to detain
appellant and search his truck. We will
affirm the trial courts ruling.
Standard of Review
To
review the denial of a motion to suppress, we apply a bifurcated standard of
review. See Hubert v. State,
312 S.W.3d 554, 559 (Tex.Crim.App.
2010). We review the trial courts
application of the law to the facts de
novo. Id. However, we defer to the trial courts
determination of credibility and historical fact. Id.
Because the trial court is in the position to see the witnesses testify
and to evaluate their credibility, we must view the evidence in the light most
favorable to the trial courts ruling. See
Wiede v. State, 214
S.W.3d 17, 24-25 (Tex.Crim.App. 2007). Where a trial court has made findings of
fact, as is the case here, we review the record to determine whether the
evidence, viewed in the light most favorable to the trial courts ruling,
supports the fact findings entered. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).
Applicable Law
That
the search in question was conducted without a warrant is not an issue, and,
therefore, such a search is per se
unreasonable. See Wiede, 214 S.W.3d at 24. However, there is an exception for vehicles if
the officer has probable cause to believe the vehicle in question contains
contraband. Id. Probable cause exists when the totality of
the circumstances allows a conclusion that there is a fair probability of
finding contraband or evidence at a particular location. Dixon v. State, 206
S.W.3d 613, 616 (Tex.Crim.App. 2006). Dixon applied the totality of the
circumstances analysis promulgated by the United States Supreme Court in Illinois
v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). The Gates
test did away with the rigid two prong analysis of veracity and basis of
knowledge previously used in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed2d 723 (1964). Under Gates, the analysis of the two
prongs is not considered serially and independently, but rather as relevant
considerations in the totality of the circumstances analysis of probable
cause. Dixon, 206
S.W.3d at 616.
Analysis
Our
analysis must begin with the evidence presented at the hearing on appellants motion
to suppress the evidence of the search.
That evidence was primarily outlined in the Factual and Procedural
Background section of this opinion.
Additionally, we must add that the trial court did file findings of fact
in this case. First, the trial court
made oral findings and then reduced those findings to writing and filed them in
this record. The trial court found the
following facts:
1. Pursuant to a search warrant, the police searched
confidential informant Mr. Gores house which revealed the presence of drugs.
2. Informant Gore was arrested on May 5, 2009.
3. At the time of his arrest, Informant Gore met with
Tarrant County Narcotics Unit investigator Deputy Doug Deweese.
4. Informant Gore, in consultation with his attorney,
entered into a written agreement with Investigator Deweese
to provide the location where drugs would be found (i.e. a drug bust) to work
off the case for him and his wife.
5. When asked if there was anything else Informant Gore
needed to tell the officer, Informant Gore revealed the presence of additional
drugs at the house that had not been seized during the execution of the search warrant.
6. On May 14, 2009, after additional conversations with
the investigator, Informant Gore gave police information about the drug
conveyance that is the subject of this lawsuit.
He stated that he knew the drug deliverer to be the Defendant, Mr. Bienvenido Ortega.
He gave the description of a specific location, vehicle and time as well
as a specific description of the defendant, who would be with the defendant,
and a specific description of the packaging for the drugs.
7. Based on Informant Gores precise descriptions and the
fact that Informant Gore had given self-incriminating evidence, the
investigator believed Informant Gore to be a credible and reliable informant.
Based on our review of the record, we
find that all of the findings made by the trial court are supported by the
testimony before the trial court at the suppression hearing. The single exception is the finding as to the
person riding with appellant in the truck.
Gore misidentified that person to be appellants brother, and it was
later shown that it was an employee of appellant, not his brother.
Having
found the findings supported by the record, we now turn to the question of the
initial detention of appellant. When
appellant drove up to the location that Gore said he would come to, he was almost immediately detained by
the deputies. Did the deputies have
reasonable suspicion to detain appellant and then did the facts provide probable
cause to search the truck?
Reasonable suspicion to stop and
detain a person for the purposes of investigating possible criminal behavior
requires only that the officers have specific and articulable
facts, which taken together with rational inferences from those facts
reasonably warrant the intrusion. See
Terry v. Ohio, 392 U.S.1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This is a lesser burden on the officers than
probable cause which requires that the totality of the circumstances form a
conclusion that there is a fair probability of finding contraband or evidence
at a particular location. See Dixon,
206 S.W.3d at 616.
We point this out because, in an attempt to granulate the issues,
appellant seems to try to draw a distinction between the initial detention and
the search. Suffice it to point out that
if there are facts enough to provide probable cause, then there are facts
sufficient to support reasonable suspicion.
The
analysis of the facts supporting probable cause turns on the indicia of reliability
of the informant Gore. The record
supports that although Gore had only been a confidential informant for a short
period of time and, in fact, there were no other instances of him providing
information that proved to be accurate, there were indicia of reliability on
which the deputy was entitled to rely.
Specifically, there is the revelation to the deputy about other drugs
that had come into Gores possession after the initial search warrant had been executed. This act of
self-incrimination by Gore provides some of the indicia of reliability. See Abercrombie v. State, 528
S.W.2d 578, 584-85 (Tex.Crim.App. 1975) (op. on rehg) (finding that admission against penal interest, when
combined with verified details, was sufficient to provide reliability); Marsh
v. State, 2007 Tex. App. LEXIS 2931 at *5-*6 (Tex. App.Amarillo 2007, pet.
refd) (not designated for publication) (statement
against penal interest when combined with other facts provides credibility); Montgomery
v. State, 2005 Tex. App. LEXIS 3467 at *12 (Tex.App.Fort
Worth 2005, pet. refd) (not designated for
publication) (a statement against penal interest is inherently credible and may
be sufficient, in and of itself, to establish probable cause). Not only is there the self-incrimination aspect,
but also, the record reflects the details of how the post-warrant drugs were
left and hidden exactly as Gore had advised Deweese. This provided Deweese
with enough of a sense of reliability to allow the deputy to set up and observe
the meeting place for appellants appearance.
Next, the record reveals and, the
trial court so found, that the details Gore had provided of appellants
appearance were confirmed. These are
what appellant contends are innocent details that do not provide any type of
probable cause. However, appellants
contention ignores the fact that, while some detailed facts might be acquired
by common knowledge, such as the color and make of appellants truck, others
are limited to this precise criminal episode, such as the exact time and place
of appellants arrival to conclude the transaction. Appellant would say that he had to come to
Gores location on business to pick up a check.
However, there is nothing in the record that would indicate that picking
up a check would be done at a meeting place away from Gores office, which the
record shows was at his residence. The
wealth of verifiable detail that Gore provided help offset the lack of a proven
track record in a totality of the circumstances analysis. See Dixon, 206
S.W.3d at 617-18.
Based
on the totality of the circumstances, we find that the decision of the trial
court was correct. See Gates,
462 U.S. at 238; Dixon, 206 S.W.3d at 616. Accordingly, we overrule appellants
contentions to the contrary.
Conclusion
Having overruled
appellants contentions, the trial courts judgment is affirmed.
Mackey
K. Hancock
Justice
Publish.
[1]
See
Tex. Health & Safety Code Ann.
§ 481.115(e) (West 2010).
| {
"pile_set_name": "FreeLaw"
} |
547 P.2d 1399 (1976)
Alvin L. NAPIER, Respondent,
v.
L. F. SHERIDAN, and the State of Oregon, acting by and through the State of Oregon Highway Commission, Appellants.
Court of Appeals of Oregon.
Argued and Submitted January 23, 1976.
Decided March 22, 1976.
*1400 Michael Lehner, Portland, argued the cause for appellants. On the briefs were Edward H. Warren, Donald E. Hershiser, and Hershiser, Mitchell & Warren, Portland.
William E. Hurley, Portland, argued the cause and filed the brief for respondent. With him on the brief were Bernard, Hurley, Hodges & Kneeland, Portland.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
SCHWAB, Chief Judge.
Plaintiff sued defendant for both false arrest and malicious prosecution.[1] The trial court directed a verdict of liability on the false-arrest cause of action, and the jury awarded damages. The jury returned a verdict in favor of the plaintiff on the malicious-prosecution cause of action and awarded damages. Defendant contends that he was entitled to a directed verdict on both causes and that plaintiff was not entitled to a directed verdict on the false-arrest action.
The facts are as follows: Plaintiff was employed by one Praggastis to perform a variety of services. In connection with logging duties for Praggastis, plaintiff and one Swank were instructed to cut merchantable timber from the Praggastis property. Praggastis and one Keller had an agreement whereby plaintiff and Swank were also to cut certain merchantable timber on Keller's land. Although Keller showed plaintiff the property line between the Keller and the Praggastis property, the line to the north, where the Keller property adjoins a state-owned parcel, was not made clear. The state land is, however, separated by a fence, and the trees on it are a different variety. After logging through Keller's property in a northerly direction, plaintiff and Swank came to the state property which was bordered by a freeway right-of-way fence and an old barbed wire fence. They entered the property, felled 19 trees and stacked some of them on state property and some in Keller's grain field. Part of the old fence was knocked down at some point in the operation.
*1401 A few days later Keller saw the logs and informed plaintiff that they had been cut on state land. Coincidentally, a resident of the area telephoned defendant at the state highway division office the same morning Keller talked to plaintiff and that person told defendant that logging was being conducted on state land. Defendant and several others went immediately to the scene to investigate and then located plaintiff nearby. Upon being confronted with the fact that trees had been cut on state land, plaintiff admitted to the state personnel that he had done the logging. Plaintiff denied, though, that he knew the land belonged to the state at the time the trees were cut, stating that he had learned that fact from Keller only an hour or two earlier. During the interview, a log truck arrived to remove the logs, but it was sent away pending completion of the state's investigation. It is not clear who ordered the truck.
Defendant and the other state employes left, but on the advice of an assistant attorney general, they returned later that afternoon with a state policeman. Upon completing his investigation, the policeman stated that any arrest would have to be a citizen's arrest. Following a discussion of the evidence, the highway division personnel concluded that an arrest should be made. After defendant signed a citizen's arrest from, plaintiff was taken to the county jail and booked on a felony charge.
Subsequent to investigation by another police officer, Clackamas County Deputy District Attorney Parker concluded that it would be difficult to prove criminal intent, an element of the felony charged. He explained this to defendant and his supervisor the following morning at a meeting, discussed in more detail below. As a result of that meeting, defendant signed a complaint charging plaintiff with criminal trespass in the second degree. The prosecution of plaintiff on that charge terminated in his favor.
It is not unusual for actions for false arrest and malicious prosecution to be joined in the same complaint, as here. Nevertheless, the principles of law governing these actions are different, and consequently we discuss them separately.
I
Defendant contends that the trial court erred in directing a verdict in favor of plaintiff on plaintiff's cause of action for false arrest and in denying defendant's motion for a directed verdict in his favor. To recover, it was necessary for plaintiff to establish that defendant intended to confine him, that defendant did confine him, and that plaintiff was aware of his confinement. See generally, Restatement (Second) of Torts § 35 (1965). It is not disputed that these elements were established. Want of probable cause, which must be shown in an action for malicious prosecution, is not an issue in a false-arrest action.[2] Nevertheless, it is fundamental that the arrest must have been a false arrest, i.e., one made without legal authority. If the arrest was lawful, then it was privileged.
"* * * Since some arrests are lawful and some are `false,' the existence of the privilege to invade interests in personality which every arrest involves depends on the existence of the circumstances and conditions under which the law permits an arrest." 1 Harper and James, The Law of Torts 275, § 3.18 (1956).
At the time this action arose, the power of a private citizen to arrest another was governed by statute. Former ORS 133.350 (repealed, Oregon Laws 1973, ch. 836, § 358, p. 2814) provided:
"A private person may arrest another for the causes specified in ORS 133.310 *1402 in like manner and with like effect as a peace officer without a warrant."
ORS 133.310 (amended, Oregon Laws 1973, ch. 836, § 72, p. 2725, and Oregon Laws 1974 (Special Session), ch. 42, § 2, p. 127) provided:
"A peace officer may arrest a person without a warrant:
"* * *
"(2) When the person arrested has committed a felony, although not in his presence;
"(3) When a felony has in fact been committed * * * and he has reasonable cause for believing the person arrested to have committed it;
"* * *."
These statutes are a codification of the common law. Restatement (Second) of Torts §§ 118 and 119(a) and (b) (1965).
The question which must be answered is whether or not a felony, i.e., first degree theft or some other offense related to cutting trees on state property, was actually committed. If a felony was not committed, defendant was not privileged to arrest plaintiff regardless of whether he had a reasonable belief both that a felony had ben committed and that defendant was guilty. 1 Harper and James, The Law of Torts 276, § 3.18 (1956). The Restatement comment concerning the common law equivalent of ORS 133.310(3) explains the necessity of an actual felony:
"In order that a private individual may be privileged to arrest another on suspicion of felony, it is necessary that an act or omission actually constituting a felony has been committed, and that the actor reasonably suspects that the other whom he arrests has committed that act or omission, and therefore has committed a felony. It is not enough that the actor, if a private person, believes no matter how reasonably that a felonious act has been committed, and that the other has committed it. Not only must the act of which the actor suspects the other have been committed, but the act must be a felony. The fact that an act has been committed and that the actor through a mistake of law or fact reasonably believes such act to be a felony does not give him any privilege to arrest another whom he knows or reasonably suspects of having committed the act, and this is true although the act, while not a felony, is a breach of the peace or misdemeanor * * *." Restatement (Second) of Torts § 119, comment i at 197 (1965).
The determination of whether a felony was committed is a question of fact for the jury, unless, of course, the facts are not in dispute and only one inference can be drawn from them. See, State v. Knighten, 236 Or. 634, 636, 390 P.2d 166, 167 (1964); cf., Varner v. Hoffer, 267 Or. 175, 181, 515 P.2d 920 (1973).
Here the trial court stated that there was no evidence that a felony occurred and that the evidence was that it did not. However, plaintiff in effect admits that the only missing element to establish first degree theft, a Class C felony, was his intent to appropriate the trees.[3] That would necessarily present a jury question. E.g., McNeff v. Heider, 216 Or. 583, 591, 337 P.2d 819, 340 P.2d 180 (1959) (dictum).
Different inferences concerning plaintiff's intent could be drawn from the facts. The jury could have found that plaintiff knew the state land did not belong to Keller and therefore intended to steal the trees. The state land is distinct: a road runs between the two parcels, the trees on the two tracts are different species, and the state land is surrounded by a unique fence which was cut where the trees were pulled out. On the other hand, plaintiff denied knowing the land was not Keller's when the trees were cut, and Keller testified that he did not think plaintiff knew the adjoining parcel was state land.
*1403 Since a jury question was raised, the trial court erred in directing a verdict for plaintiff. It also follows that defendant's motion for a directed verdict was properly denied.
On retrial, if the jury decides that the trees were cut on state land under such circumstances as constituted a felony and that that felony was committed by plaintiff, then the arrest was lawful under ORS 133.310(2), and defendant was justified in making it. If by some chance there is evidence from which the jury could find that that felony was committed by someone other than the plaintiff, then an inquiry must be made to determine whether defendant had reasonable cause to believe that plaintiff committed that felony. This is a question of law for the court as is probable cause in malicious prosecution. Delp v. Zapp's Stores, 238 Or. 538, 395 P.2d 137 (1964).
"* * * However, if the facts are disputed, the jury must decide the facts, except that, even though the facts are disputed, the court decides the question of reasonableness, as a matter of law. The court performs this function, when the facts are disputed, by instructing the jury that if it finds the facts to be so and so, then such facts do, or do not, constitute reasonable cause; or, the court concludes that, accepting the disputed facts in the light most favorable to the plaintiff, such facts support only one conclusion, the defendant had reasonable cause to believe the plaintiff had committed * * * [a felony]." 238 Or. at 542, 395 P.2d at 139.
II
Defendant also assigns as error the trial court's denial of his motion for a directed verdict on plaintiff's cause of action for malicious prosecution. Defendant contends that plaintiff failed to prove that the proceeding for criminal trespass was initiated without probable cause.
The probable-cause requirement was discussed in Varner v. Hoffer, 267 Or. 175, 515 P.2d 920 (1973). There the court stated:
"We have adopted 3 Restatement, Torts § 662, as a correct statement of when probable cause exists. * * * Section 662, 3 Restatement, Torts, pp. 403-404, provides:
"`One who initiates criminal proceedings against another has probable cause for so doing if he
"`(a) reasonably believes that the person accused has acted or failed to act in a particular manner, and
"`(b)
"`(i) correctly believes that such acts or omissions constitute at common law or under an existing statute the offense charged against the accused, or
"`(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in § 666.'" 267 Or. at 179, 515 P.2d at 922.
Defendant must have both a reasonable and a subjective belief in the guilt of the accused. Gustafson v. Payless Drug Stores, 269 Or. 354, 357, 525 P.2d 118 (1974). The question presented is whether the court erred in allowing the jury to determine the existence of probable cause.
Dean Prosser states the general rule regarding the functions of the court and the jury on the probable-cause issue as follows:
"The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court * * *." Prosser, Torts 846-47, § 119 (4th ed 1971).
See also, 1 Harper and James, The Law of Torts 319, § 4.5 (1956). The Supreme Court approved this language in Gustafson, *1404 and then amplified the procedures to be followed:
"`If the facts or inferences are in dispute the jury must decide the facts and the court must instruct the jury what facts constitute probable cause.' Varner v. Hoffer, supra, 267 Or. at 179, 515 P.2d [920] at 921. We pointed out that instructing on the issue of probable cause is very difficult when the jury can find a number of different fact combinations. Another possible procedure is to settle the factual disputes by having the jury answer special interrogatories. Hess v. Oregon Baking Co., 31 Or. 503, 511, 49 P. 803 (1897). If such a procedure were used, the trial court would decide whether the plaintiff had probable cause based upon the facts found by the jury in answer to the interrogatories." 269 Or. at 357-58, 525 P.2d at 120.
We find no factual dispute concerning defendant's "reasonable belief," the first prong of the probable-cause test in the Restatement (Second) of Torts. It was entirely reasonable, as a matter of law, for defendant to believe that plaintiff went onto state land and cut down trees since plaintiff admitted to defendant that he did so. Furthermore, there is no evidence that defendant did not subjectively believe this.
Resolution of the other prong of the probable-cause test is more difficult. Plaintiff contends that his actions did not constitute criminal trespass in the second degree, the crime with which he was charged, and that defendant did not rely on advice of counsel in believing that they did. Consequently, it is first necessary to determine whether the activities of plaintiff amounted to criminal trespass.
ORS 164.245 provides:
"(1) A person commits the crime of criminal trespass in the second degree if he enters or remains unlawfully in or upon premises.
"(2) Criminal trespass in the second degree is a Class C misdemeanor."
ORS 164.205(3)(a) defines "enter or remain unlawfully" as meaning:
"To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so * * *."
"Open to the public" means:
"* * * [P]remises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required." ORS 164.205(4).
Although there is some confusion as to the exact nature of the fence around the state-owned parcel, defendant himself made it clear at trial that this land was open to the public.
"Q [The land] was not posted at the time, was it?
"A No.
"* * * * *
"Q There were some openings at least in this fence, weren't there, right?
"A Yes.
"* * * * *
"Q You had no objection to people going into that area, did you?
"A I can't personally think of any particular opposition as long as they weren't coming in and off the freeway to do it.
"Q In fact you know that I have been on that property, don't you?
"A You have said you have.
"Q And that didn't bother you, did it?
"A No.
"Q You regarded this as a place open to the public, did you not?
"A It wasn't restricted."
We find as a matter of law that plaintiff did not commit criminal trespass in the second degree. Therefore, defendant initiated the criminal proceedings without probable cause unless he did so on the *1405 advice of counsel. Defendant contends that he relied on the advice of a deputy district attorney and an assistant attorney general, and that as a result the court should have granted his motion for a directed verdict.
We must again examine the functions of the court and the jury.
"The question whether one who initiates criminal proceedings was entitled to rely upon the advice of an attorney, being a part of the issue of probable cause, is for the court to decide. This must be determined in the light of the circumstances as they existed at the time when the advice was sought, and it is for the jury to determine what the circumstances were. Thus, it is for the jury to determine what knowledge or information the accused had as to the competence and disinterested character of the attorney. It is for the court to determine whether, in view of these facts, the accuser was justified in relying upon the attorney's advice. Furthermore, it is for the jury to determine whether the client sought the advice of his attorney in good faith or whether the advice was sought to protect him from liability for initiating proceedings upon which he had already determined * * *." Restatement of Torts § 666, comment g at 420-21 (1938). (Emphasis supplied.)
Since there is no factual dispute concerning the substance of the conversations between defendant and the two attorneys, the principle set forth in Prosser, supra, indicates that the court, not the jury, should decide the good-faith question. For if good faith is left to the jury, whenever different inferences can arise from defendant's conduct, the duty of the court to determine the ultimate question of probable cause will be usurped. It is hard to conceive of a factual pattern from which two inferences concerning a defendant's state of mind, i.e., his good faith, could not be drawn.
The Oregon Supreme Court, however, apparently agrees with the Restatement of Torts comment quoted supra. In Lampos v. Bazar, Inc., 270 Or. 256, 527 P.2d 376 (1974), defendant contended that he relied on the advice of the district attorney in initiating a criminal prosecution against plaintiff and that such reliance required the court to grant his motion for a directed verdict. In answer, the court stated:
"Defendant may have relied in good faith upon the advice of the district attorney. The jury could have reasonably found, however, that Mr. Falk, by his attitude and conduct during the interview with plaintiff, had prejudged plaintiff's guilt and that he did not rely in good faith upon the advice of the district attorney." 527 P.2d at 382.
Although this is dictum, it is clear and recent. We feel bound by it. We hold that since this aspect of probable cause presented a jury question, the trial court acted properly in denying defendant's motion for a directed verdict.[4]
*1406 Nevertheless, we must remand the case for a new trial of the malicious-prosecution cause of action. The court instructed the jury that it found "* * * as a matter of law that the arrest and restraint of [plaintiff] in this case was wrongful and unlawful * * *." As we have pointed out in part I, above, this instruction erroneously invaded the province of the jury. It may well have influenced the jury's determination of whether defendant's reliance on counsel was in good faith. The jury's determination as to whether the arrest was lawful may be a factor in its resolution of the good-faith issue.
Reversed and remanded for a new trial.
NOTES
[1] The state of Oregon was also named as a defendant on the basis of the doctrine of respondeat superior. For clarity, only the individual defendant will be referred to in the opinion.
[2] Some of the confusion between false arrest and malicious prosecution concerns the role of probable cause. Generally speaking, probable cause is not a defense to the former action it is to the latter. Restatement (Second) of Torts, § 45A, comment d at 71 (1965).
[3] Although plaintiff asserts that defendant concedes that no felony was committed, defendant states only that it would be difficult to prove the element of intent.
[4] For an example of authority reaching a contrary conclusion, see Montgomery Co. v. Pherson, 129 Colo. 502, 272 P.2d 643 (1954), in which the court held:
"The evidence, it seems to us, clearly established that the defendants instituted the prosecution in good faith and on advice of counsel, and that under the evidence presented defendants' motion for a directed verdict in their favor should have been granted." 129 Colo. at 513, 272 P.2d at 648.
The reasoning of the Supreme Court of Colorado reflects the courts' traditional distrust of actions for malicious prosecution. The court stated:
"* * * `* * * "In this class of cases the liability of juries to lose sight of the real issues, and to be influenced by sentiment, rather than the pertinent facts, is noted by careful observers. In the language of Mr. Newell: `Our experience teaches us there are few questions of law more difficult of apprehension by a jury than those which govern trials for malicious prosecution. It seems difficult for them to appreciate, if the plaintiff was really innocent of the charge for which he was prosecuted, that he still ought not to recover. They do not readily comprehend why an innocent man may be prosecuted for a supposed crime or offense, and yet have no recourse against the prosecutor who caused his arrest and imprisonment.' Newell on Mal. Pros. 269."'" 129 Colo. at 512-13, 272 P.2d at 648, quoting from Flader v. Smith, 116 Colo. 322, 181 P.2d 464, 468, 172 A.L.R. 1335 (1947).
| {
"pile_set_name": "FreeLaw"
} |
492 F.2d 115
Donnie Lynn SWANSON, Petitioner-Appellant,v.W. J. ESTELLE, Respondent-Appellee.
No. 73-1054.
United States Court of Appeals, Fifth Circuit.
April 4, 1974.
James H. Randals, staff Counsel for Inmates, Tex. Dept. of Corrections, Ellis Unit, Huntsville, Tex., for petitioner-appellant.
John L. Hill, Atty. Gen., W. Barton Boling, Jack Boone, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Before GODBOLD, DYER and GEE, Circuit Judges. GODBOLD, Circuit Judge:
1
Appellant's petition for writ of habeas corpus was denied by the District Court without an evidentiary hearing. While we are not entirely free of doubt we conclude that the court was required to inquire further into the matter.
2
Swanson pleaded guilty in Texas state court to robbery by assault. A jury heard evidence and fixed his punishment at life imprisonment. The Texas Court of Criminal Appeals affirmed.1 Swanson applied for habeas corpus in the state convicting court, raising along with other grounds the claim that his plea of guilty was involuntary because there was a plea bargain with the prosecutor that was not carried out. The court conducted a hearing on July 29, 1971, at which Swanson was represented by counsel. Neither of the two successive defense counsel nor the prosecutor testified.2 The only evidence consisted of Swanson's testimony. The court found that the plea was voluntary because (a) Swanson was guilty and so testified, and (b) 'for the reason that he hoped that in entering a plea of guilty before the jury, he would receive no more that a ten (10) year sentence.' Several non-jurisdictional grounds were held to have been waived by the valid guilty plea. The petition was denied. The Court of Criminal Appeals affirmed without written order.
3
Petitioner, proceeding pro se, then sought federal habeas relief alleging several grounds one of which was that his plea was involuntary because he was 'promised a deal' that he would not get a sentence of more than 10 years, and the agreement was not carried out. The U.S. Magistrate found that there was no plea bargain. The federal habeas court adopted the findings and conclusions of the Magistrate, found that the state court record fairly supported the findings and conclusion of the state court judge, and denied relief.
4
According to Swanson's testimony in the state habeas hearing, he was originally offered a plea bargain of a 15-year sentence, and when he was unwilling to agree the state then threatened to reindict him with an enhancement count thus exposing him to a mandatory life sentence. He concluded not to agree and was promptly reindicted with an enhancement count added. His attorney then withdrew and new counsel was appointed.
5
Against this background, Swanson described what occurred when his case was set for trial under the new indictment.
At one point he testified:
6
Q. Is there anything else that influenced you in your plea of guilty?
7
A. Just the attorney saying that I wouldn't get over 10 years if everything I told him was true.
8
Earlier, when asked what happened when he was called to court, he had stated:
9
Q. What happened when he called you down to Court?
10
A. I talked to Mr. Sanda (appointive counsel) in here and he called me late in the day, I'd say 10:00 o'clock. It wasn't nobody in there, and he talked to me back there in the jury room and he told me that he had made an agreement with the district attorney's office and that he was going to just sit back and forget about the motion while the district attorney's office was going to withdraw the second paragraph of the indictment.
11
Q. Forget about what motion?
12
A. Pretrial motion that he had filed to suppress evidence and lineup and he said that he felt this was the best bet; that the district attorney's office was going to withdraw this enhancement off of the indictment and that I had a good chance of, if everything I told him was true about the robbery, that there wasn't any violence in it. He said if I could come out here and enter a plea of guilty, that he felt that I wouldn't get a day over 10 years, and I agreed to do that.
13
Q. Had there been any agreement, now, between Mr. Sands and anyone else concerning the time that you might get.
14
A. As far as I now I just talked to him only, and he told me that. I asked him if we were going to plead guilty to the judge and he said No, that the State still wanted a jury trial; that you couldn't deny them a jury trial if they wanted one.
15
Overall these statements are not free from ambiguity. But we do know that the state's construction of them is not correct. The state's position at oral argument was that there was no 'plea bargain' at all. It enables itself to take this position by interpreting 'plea bargain' as confined to an agreement concerning the length of sentence. But this is a semantical device that does not stand scrutiny. The foregoing testimony unequivocally says that there was a bargain to dismiss the enhancement count of the indictment, and the record reveals that bargain was carried out and the enhancement count dismissed before the case was submitted to the jury. In fact the state acknowledges that is what occurred and affirmatively asserts that it carried out such agreement. What is left unanswered is whether there was a second leg to the agreement-- that the prosecutor would recommend to the jury a 10-year sentence-- or whether Swanson and his counsel rolled the dice on the sentence the jury would impose (which could be as much as life) with the enhancement count (and a mandatory life sentence) out of the picture.
16
The state habeas court concluded that a 10-year sentence was only a 'hope.' But that conclusion is supported by a specific page number to a single page of the evidentiary hearing transcript where there appears the statement by Swanson that he was influenced by his attorney's 'saying that I wouldn't get over 10 years if everything I told him was true.' The court did not refer to Swanson's earlier and express testimony that there was an agreement, or to the fact that the record itself showed, at least with respect to the enhancement count, that Swanson's version of what occurred was correct. Nor did it refer to the testimony concerning the earlier refusal to plead guilty for an agreed 15-year sentence. The record is silent as to what recommendation, if any, the prosecutor made to the jury as the sentencing authority. The state habeas court made no finding that Swanson was not credible, and in fact relied upon Swanson's own statement as the predicate for the 'only a hope' finding.
17
The U.S. Magistrate, whose findings and recommendations were accepted by the federal habeas judge, and the state on this appeal, have focused on the statement of Swanson that the appointive attorney 'felt' that the sentence would not be over 10 years. The difficulty with this argument is that this is not the testimony to which the state habeas court referred in its decision. Additionally, the testimony concerning what the attorney 'felt' is ambiguous-- does it mean Swanson agreed to 10 years, or agreed to take his chances on his attorney's feeling that he wouldn't get over 10 years? The Magistrate, like the state court, made no reference to the fact that there was a bargain and that the only dispute concerned its scope.
18
Swanson at least set out the rough contours of a claimed dual-aspect bargain in which he was not a participant, and those who can accurately describe it and state whether there was only one aspect to it or two have not been heard from. Swanson's testimony and the accompanying circumstances raise at least 'built in' doubts which the state has not attempted to resolve. Fortner v. Balkcom, 380 F.2d 816 (CA5, 1967). Under all the circumstances we must conclude 'that the material facts were not adequately developed at the State court hearing.' 28 U.S.C. 2254(d)(3). In a similar context, in a case in which state proceedings were pre-Santobello and the federal habeas court did not conduct an evidentiary hearing, we remanded to the District Court for reconsideration 'in light of Santobello and for whatever further evidentiary proceedings may be deemed warranted.' James v. Smith, 455 F.2d 502, 503 (CA5, 1972). That is what we do here also.
19
Vacated and remanded to the District Court for further proceedings not inconsistent with this opinion.
GEE, Circuit Judge (dissenting):
20
Unable to distinguish this case in principle from our very recent en banc decision in Bryan v. United States, 492 F.2d 775 (5 Cir. 1974), and convinced that Swanson's showing amounts to no more than a 'hope' grounded in what his attorney 'felt,' I respectfully dissent.
1
Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969)
2
The state habeas hearing took place before Santobello v. N.Y., 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)
| {
"pile_set_name": "FreeLaw"
} |
IN THE
SUPREME COURT OF THE STATE OF ARIZONA
DALE ALLEN WRIGHT,
Petitioner,
v.
THE HONORABLE PAMELA GATES, JUDGE OF THE SUPERIOR COURT OF THE
STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,
STATE OF ARIZONA,
Real Party in Interest
No. CR-16-0435-PR
Filed October 4, 2017
Appeal from the Superior Court in Maricopa County
The Honorable Pamela Gates, Judge
No. CR1992-003917
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division One
240 Ariz. 525 (App. 2016)
VACATED
COUNSEL:
Bruce F. Peterson, Maricopa County Office of the Legal Advocate, Frances
J. Gray (argued), Deputy Legal Advocate, Phoenix, Attorneys for Dale
Allen Wright
William G. Montgomery, Maricopa County Attorney, Jeffrey R. Duvendack
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona
Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued),
Assistant Public Defender, Tucson, Attorneys for Amicus Curiae Pima
County Public Defender’s Office
WRIGHT V. GATES (STATE)
Opinion of the Court
CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
BOLICK, GOULD, and LOPEZ joined.
CHIEF JUSTICE BALES, opinion of the Court:
¶1 We here consider whether enhanced sentences may be
imposed under the dangerous crimes against children (“DCAC”) statute in
the absence of an actual child victim. Consistent with the text of A.R.S.
§ 13-705(P)(1), which defines a DCAC offense as one that is “committed
against a minor who is under fifteen years of age,” we hold that enhanced
DCAC sentencing does not apply when a defendant commits a crime
against a fictitious child.
I.
¶2 In 1992, Dale Allen Wright spoke to a woman about allowing
him to engage in sexual acts with her two young children. The woman was
actually a postal inspector, and the children were fictitious. Wright pleaded
guilty to two counts of solicitation to commit molestation of a child.
Wright’s crimes were classified as DCAC, and he was sentenced to lifetime
probation on each count in accordance with the DCAC sentencing statute,
then codified as A.R.S. § 13-604.01. Since Wright’s sentencing, § 13-604.01
has been amended and renumbered as A.R.S. § 13-705. Because the relevant
provisions remain the same, we refer to the current statute.
¶3 In 2002, Wright’s probation was revoked as to one count, and
Wright was sentenced to ten years’ imprisonment. Upon his release,
Wright’s lifetime probation on the second count was reinstated. In 2014,
the State moved to revoke his probation. Wright moved to dismiss the
DCAC designation and requested a delayed petition for post-conviction
relief under Arizona Rule of Criminal Procedure 32. Without deciding the
merits, the trial court denied Wright’s request and ultimately reinstated
Wright on probation.
¶4 In 2015, the State again moved to revoke Wright’s probation,
and Wright again moved to dismiss the DCAC designation. When the court
once more declined to hear his motion on the merits, Wright petitioned for
special action relief in the court of appeals, requesting a remand for
“consideration of the substantive issues.” The court of appeals granted
2
WRIGHT V. GATES (STATE)
Opinion of the Court
relief. On remand, the trial court denied Wright’s motion, finding that the
crimes were properly designated as DCAC.
¶5 Wright again brought a special action in the court of appeals.
A divided panel of that court upheld the trial court, ruling that DCAC
sentencing applies to convictions for solicitation to commit molestation of
a child when the victim is fictitious. Wright v. Gates, 240 Ariz. 525, 528
¶¶ 14–15 (App. 2016). The dissenting judge would have granted relief,
reasoning that “one cannot be convicted of soliciting another to commit
molestation of a child in the absence of an actual child.” Id. at 529 ¶ 20
(Johnsen, J., dissenting).
¶6 We granted review because application of the DCAC
sentencing statute is a recurring issue of statewide importance. Wright
sought Rule 32 relief only from the enhancement of his sentences, and he
only petitioned for review with respect to the DCAC issues. Accordingly,
we do not here address whether, as the dissenting appellate judge argued,
solicitation to commit child molestation can be committed in violation of
A.R.S. § 13-1002(A) when no actual child is involved. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.
II.
¶7 “This case presents an issue of statutory interpretation, which
we review de novo.” State v. Jurden, 239 Ariz. 526, 528 ¶ 7 (2016). A statute’s
words are “given their ordinary meaning unless it appears from the context
or otherwise that a different meaning is intended.” State v. Miller, 100 Ariz.
288, 296 (1966).
¶8 Section 13-705(P)(1) identifies certain crimes, including child
molestation, as DCAC when they are “committed against a minor who is
under fifteen years of age.” A DCAC offense “is in the first degree if it is a
completed offense and is in the second degree if it is a preparatory offense.”
A.R.S. § 13-705(O).
3
WRIGHT V. GATES (STATE)
Opinion of the Court
A.
¶9 As a preliminary matter, we must determine whether
solicitation to commit child molestation is a second-degree preparatory
offense under A.R.S. § 13-705(O). We conclude that it is.
¶10 Section 13-705(P) lists twenty-two offenses that qualify as
DCAC if they are committed against a minor younger than fifteen,
including child molestation. The list of qualifying offenses does not itself
refer to preparatory offenses. Instead, § 13-705(O) states that a DCAC
offense “is in the second degree if it is a preparatory offense.” Because
§ 13-705 does not itself define “preparatory offense,” the phrase is best
understood as referencing the offenses identified in Title 13, chapter 10
(“Preparatory Offenses”) of the criminal code—attempt, solicitation,
conspiracy, and facilitation, see A.R.S. §§ 13-1001 to -1006—if they involve
one of the DCAC qualifying offenses listed in § 13-705(P). This conclusion
is supported by the fact that § 13-705(J), which specifies sentences for
second-degree DCAC offenses, states that it applies “[n]otwithstanding
chapter 10 of this title,” thereby indicating that the offenses would
otherwise be subject to chapter 10.
¶11 Wright argues that “preparatory offense” for purposes of
DCAC only embraces conduct reflecting an “incomplete effort to commit
one of the enumerated DCAC offenses.” Thus, a DCAC enhancement
might apply to an attempt, see A.R.S. § 13-1001, but not to solicitation
because that offense is completed with communication and cannot
comprise “conduct in furtherance of a DCAC offense.” Such a narrow
reading of “preparatory offense” is not tenable. “As the name implies, a
preparatory offense is committed in preparation for committing a
completed crime.” Mejak v. Granville, 212 Ariz. 555, 558 ¶ 18 (2006).
Whether committed by communication or conduct, a preparatory offense,
as provided in Title 13, chapter 10, in furtherance of an enumerated DCAC
offense, is punishable under the DCAC statute.
¶12 Accordingly, we conclude that solicitation of an enumerated
DCAC offense is a second-degree dangerous crime against children.
4
WRIGHT V. GATES (STATE)
Opinion of the Court
B.
¶13 We next turn to whether the DCAC sentencing statute applies
to offenses when the victim is a fictitious child. The statute defines a
dangerous crime against children as any of the enumerated crimes
“committed against a minor who is under fifteen years of age.” A.R.S.
§ 13-705(P)(1). By referring to “a” minor who “is” under fifteen, the statute
ostensibly refers to an actual person. This reading comports with the
legislature’s general directive that unless a statute’s context requires
otherwise, “‘[m]inor’ means a person under the age of eighteen years.”
A.R.S. § 1-215(21).
¶14 In some cases, however, the context and history of a statute
have compelled us to define “minor” differently. See State ex rel. Polk v.
Campbell, 239 Ariz. 405 (2016). For example, in Polk, we examined the child
prostitution sentencing provisions of A.R.S. § 13-3212 and concluded that,
in that context, the legislature intended “minor” to include adult peace
officers posing as minors. Id. at 409 ¶ 17. The child prostitution statute
specified different felony classifications depending on how the offender
committed child prostitution and whether the minor involved was younger
or older than fifteen. Id. at 407 ¶ 10. Although the legislature
simultaneously enacted a provision allowing convictions when the “minor”
involved was in fact a peace officer posing as a minor, the legislature did
not separately identify sentences for such offenses. Id. at 407-08 ¶¶ 10-11.
We concluded that “[i]t is implausible to infer that the legislature intended
to exclude such violations [from the sentencing provisions of the child
prostitution statute] while not otherwise identifying their punishment.” Id.
at 408 ¶ 13.
¶15 But the statute here is unlike that in Polk. The context and
history of the DCAC statute do not support reading the phrase “minor who
is under fifteen years of age” to include fictitious children. First, the
sentencing scheme of A.R.S. § 13-705 prescribes the greatest penalties when
the victims are youngest and most vulnerable and the touching is most
invasive, and the severity of punishment decreases where the victim is
older or the touching is not completed. These graduated sanctions suggest
that the legislature similarly intended less severe punishment when there
is no actual child victim. In that situation, the crime will be punished as the
law generally provides rather than with an enhanced DCAC sentence.
5
WRIGHT V. GATES (STATE)
Opinion of the Court
¶16 Second, the legislative history supports applying § 13-705 by
its terms, that is, when the victim in fact is “a minor who is under fifteen
years of age.” The DCAC statute began as a Senate bill that described the
law as “prescribing sentences for sexual offenses if children are victims,”
S.B. 1021, 37th Leg., 1st Reg. Sess. (Ariz. Jan. 1985), and the bill’s sponsor
explained that “[t]he concept behind these increased sentences is that the
young people are scarred for life.” Hearing on S.B. 1021 Before the S. Comm.
on Judiciary, 37th Leg., 1st Reg. Sess. 2 (Ariz. 1985) (statement of Sen. Kay,
Chairman). Thus, the purpose of the statute was to provide enhanced
punishment for offenders who harmed actual—not fictitious—children.
¶17 Moreover, if the legislature intended to include fictitious
children within the DCAC sentencing scheme, it would have included
language such as “a person posing as a minor under the age of fifteen” in
A.R.S. § 13-705(P)(1). The legislature has done so when the distinction
between actual and putative children is relevant. For example, the child
prostitution statute at issue in Polk uses the term “minor” to define how the
offense is committed, but then provides that “[i]t is not a defense to a
prosecution . . . that the other person is a peace officer posing as a minor or
a person assisting a peace officer posing as a minor.” A.R.S. § 13-3212.
¶18 In sum, we conclude that A.R.S. § 13-705(P)(1) requires an
actual child victim for DCAC enhanced sentences to apply to the
enumerated offenses.
¶19 The court of appeals reached a different conclusion in State v.
Carlisle, 198 Ariz. 203 (App. 2000), which upheld a DCAC enhanced
sentence for a defendant convicted of attempted sexual conduct with a
minor, even though the “minor” was an adult posing as a young boy. In
Carlisle, the court reasoned that because factual impossibility is not a
defense to attempt, it is not a defense to DCAC enhancement under A.R.S.
§ 13-705. Id. at 207-08 ¶ 17. This argument, however, conflates the elements
of a preparatory offense with the statutory conditions for imposing a DCAC
enhanced sentence. Cf. State v. Williams, 175 Ariz. 98, 102 (1993) (noting the
need to distinguish between elements of offenses that may qualify as DCAC
and additional conditions for imposing sentence enhancements). Under
subsection (P), enhancements only apply when the offense “is committed
against a minor who is under fifteen years of age.” Because subsection (O)
only authorizes enhanced sentences for DCAC offenses, even if the offense
6
WRIGHT V. GATES (STATE)
Opinion of the Court
is preparatory, it must have been committed against an actual child. We
thus overrule Carlisle insofar as it holds that DCAC sentencing may be
imposed under A.R.S. § 13-705 when a defendant commits a crime against
a fictitious child.
III.
¶20 For the foregoing reasons, we vacate the opinion of the court
of appeals, reverse the trial court’s order denying Wright’s request to
dismiss the DCAC designation, and remand to the trial court for further
proceedings consistent with this opinion.
7
| {
"pile_set_name": "FreeLaw"
} |
208 Cal.App.2d 599 (1962)
25 Cal. Rptr. 493
THE HOUSING AUTHORITY OF THE CITY OF NEEDLES et al., Plaintiffs and Respondents,
v.
CITY COUNCIL OF THE CITY OF NEEDLES et al., Defendants and Appellants.
Docket No. 6848.
Court of Appeals of California, Fourth District.
October 16, 1962.
*600 Harold Payne for Defendants and Appellants.
King & Mussell and C.L. Vineyard for Plaintiffs and Respondents.
BROWN, J.[*]
This is an appeal from a judgment and order for the issuance of a peremptory writ of mandamus in favor of petitioners and respondents (hereinafter referred to as petitioners).
McReynolds and Duke, petitioners, were reappointed to the Housing Authority of the City of Needles as commissioners on June 3, 1957, for terms of four years, and petitioner Brewer was appointed on July 17, 1957, and again appointed in June 1959, for a term of four years. On June 8, 1960, the city council passed a resolution purporting to abolish the Housing Authority of the City of Needles, apparently relying on a section of the Needles charter, and on learning of the existence of section 34282 of the Health and Safety Code, the city council rescinded their action. On July 27, 1960, another resolution was passed, proposing to remove petitioners from their offices as commissioners on the grounds that (1) said members were improperly and unjustly biased and prejudiced in matters of tenant selection; (2) said members were unduly and improperly absent from meetings of the board; and (3) said members have failed to have reports rendered to the *601 state properly signed by a city official as required by the State Housing Authority, all of which amounts to misconduct and inefficiency in office.
On August 9, 1961, the city council met, two councilmen being absent. A hearing was held under section 902 of the Needles charter which hearing was reported by an official court reporter. The witnesses at the hearing were the city manager, the city attorney, the mayor, and McReynolds and Duke, commissioners. The council acted as judge, jury and prosecutor in this matter. The meeting was adjourned to August 12th when the city council adopted and passed a resolution dismissing petitioners as commissioners. There are no rival claimants.
On October 11, 1960, said petitioners filed a petition for writ of mandate commanding the city council and its councilmen to reinstate them as commissioners on the Housing Authority of the City of Needles. An alternative writ of mandamus was issued and the city filed an answer to the petition, denying that it had no just cause for dismissal of petitioners. The matter was set for hearing on November 7, 1960. Petitioners were present at the hearing which was submitted without testimony but with exhibits; respondents and appellants were not present personally or by counsel, but did submit points and authorities. A memorandum opinion by the court was filed on February 23, 1961, issuing a writ, and a minute order was made in accordance therewith on February 21st. On March 17th appellants filed a notice of motion for new trial, which was denied on April 13th. On May 11, 1961, appellants filed a notice of appeal from the judgment and order for the issuance of peremptory writ of mandamus.
Thereafter, on June 20, 1961, the judge signed his findings of fact and conclusions of law and the judgment ordering that the writ be issued, requiring appellants to set aside the order or decision to discharge the commissioners. These findings were that the written charges provided to the commissioners were vague, indefinite and general to such an extent that notice of the charges proposed against the commissioners was inadequate and that there was no substantial evidence to support the charges against the commissioners.
[1] Appellants claim that the findings of fact and conclusions of law and judgment that were signed and filed on June 20th are of no effect and are void because jurisdiction was lost after the filing of the notice of appeal, referring to *602 rule 1 of California Rules of Court.[*] However, rule 2[**] provides that the notice of appeal shall be filed within 60 days of the date of entry of judgment unless the time is extended by rule 3[] and that the date of entry of a judgment shall be the date of its entry in the judgment book. Rule 2(c)[] covers premature notices. In this case the notice of appeal was filed prior to entry of the judgment but after its rendition and shall be valid and be deemed to have been filed immediately after entry. A notice of appeal prior to rendition of the judgment but after the judge has announced his intended ruling may, in the discretion of the reviewing court, for good cause be treated as having been filed immediately after entry of judgment (rule 2(c)). Therefore, the findings and judgment are not void, and this court at its discretion does consider this in spite of its being a premature appeal. Furthermore, appellants' failing to be present in person or through their attorneys at the superior court hearing, they cannot actually complain about the lack of findings because findings were filed. (Code Civ. Proc., § 632.)
[2] As admitted by the pleadings, the terms of petitioners McReynolds and Duke would have expired on June 3, 1961 (Health & Saf. Code, § 34272). Appellants claim that the question is moot as to these two commissioners because their terms have expired. However, Government Code section 1302 provides that an officer whose term has expired shall continue the duties of his office until his successor has qualified, and there is no mention in the Housing Authorities Law (Health & Saf. Code, § 34200 et seq.) of terminating the office on the date of its expiration. Therefore, these commissioners continue to hold office until the successors have qualified and while appellants have had at all times since the expiration of their terms of office the right to appoint their successors, there is nothing in the record to indicate that this has been done. Had this been done, the matter would be moot as to these two commissioners, saving money to appellants, petitioners and the State of California.
[3a] The appellants maintain that the writ of mandate is not one of right and not appropriate and that the action of quo warranto affords them the correct remedy.
*603 Code of Civil Procedure section 803 provides for quo warranto proceedings to be brought by the Attorney General against persons who usurp, intrude or unlawfully hold or exercise any public office, and section 811 provides that the action may be maintained by the board of supervisors or the legislative body of any municipal corporation. [4] In other words, this is the remedy for determination of title to office, and usually where there is more than one person claiming the office.
In Barendt v. McCarthy, 160 Cal. 680, 683-684 [118 P. 228], the court said: "The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure established by common law or by statute."
The court said in Petersen v. Morse, 48 Cal. App. 428, 434 [192 P. 51]: "... title to office cannot be tried by mandamus. ... The proper proceeding ... is by the legal action of quo warranto."
And in Stout v. Democratic County Central Committee, 40 Cal.2d 91, 94 [251 P.2d 321], it was said: "Title to office may be incidentally determined in mandamus [citations] and discretion rests with the court to determine whether the title should be so determined. [Citations.] Generally, quo warranto is appropriate only where there is involved a public office in the sense that the incumbent exercises some of the sovereign powers of government...."
In the Stout case, supra, the court did issue a writ of mandate because there were other questions involved and the title to the office was incidental to the main question.
The question we have here is whether title is involved in this office or whether this comes under section 1085 of the Code of Civil Procedure for which writs may be issued "... to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."
Code of Civil Procedure section 1094.5 [subdivision (a)] provides for a writ of mandate to review administrative orders or decisions which have been made "... as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination *604 of the facts is vested in the inferior tribunal, corporation, board or officer, ..."
Section 34282 of the Health and Safety Code provides the grounds for removal of housing commissioners to be inefficiency, neglect of duty, or misconduct in office. Such action is not stated to be final by this section and therefore is reviewable. (See Boyd v. Pendegast, 57 Cal. App. 504 [207 P. 713].)
In Lotts v. Board of Park Comrs., 13 Cal. App.2d 625, 634 [57 P.2d 215], certain city employees were removed from positions to which they had been regularly appointed and the court held that, "... the writ of mandamus will lie to compel the reinstatement to their positions of employees thus arbitrarily and illegally removed" and that, "Section 1085 of the Code of Civil Procedure is authority for resort to the writ of mandamus to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by a board, tribunal or officer."
In Housing Authority v. Superior Court, 35 Cal.2d 550 [219 P.2d 457], involving a writ of prohibition, the question was whether a certain contingent effect existed to warrant local application of state legislation, and the court said at page 558, "... the exercise of that narrow authority is an administrative act and not a legislative one."
In Klose v. Superior Court, 96 Cal. App.2d 913, 918 [217 P.2d 97], the court said: "The question of whether mandamus rather than quo warranto is the proper remedy where there is a dispute over whether a vacancy in office exists, is rather muddled in California. The courts have almost uniformly stated that mandamus cannot be used to try title to office, and then in a number of instances, have, in effect, tried title on the theory that title was only incidentally involved."
In Welch v. Ware, 161 Cal. 641 [119 P. 1080], there was a petition for a writ of mandate to require the auditor to pay the appellant his salary as fish and game warden. He had also been appointed by the board of supervisors as a fire warden. At the time of commencement of the action Welch, as fire, fish and game warden, had been removed by the board of supervisors without a hearing, under former Political Code section 4149b. The court held that he was entitled to a writ of mandate directing the auditor to pay his salary only as to his position as fish and game warden and not as to fire warden of $50 per month, and that the action of the supervisors in removing *605 him from his office as fish and game warden was void and petitioner still held the office.
There is no doubt that the city council, while functioning pursuant to the Housing Authorities Law, is an agency of the state functioning under the law to fulfill state purposes. (Housing Authority v. City of Los Angeles, 38 Cal.2d 853 [243 P.2d 515]; Lockhart v. City of Bakersfield, 123 Cal. App.2d 728 [267 P.2d 871].)
In People v. Olds, 3 Cal. 167 [58 Am.Dec. 398], a writ of mandamus was requested by the plaintiff who claimed to be duly elected to the office of clerk of San Francisco and set forth the proceedings he had taken to qualify and obtain possession of the records of the defendant who was then acting as clerk of said city and county. The court held that mandamus was not the proper remedy.
In Titus v. Lawndale School Dist., 157 Cal. App.2d 822 [322 P.2d 56] (hearing denied by Supreme Court), the appellant was the elected superintendent of schools and was removed by the school board without a hearing, though they did go through a form of filing charges, giving appellant 10 minutes to answer the charges. The court said at page 830:
"One of the commonest applications of mandamus is restoration of a school teacher to a position from which he or she has been wrongfully ousted. (See 23 Cal.Jur. § 100, p. 137; 32 Cal.Jur.2d § 23, p. 168.)"
And at page 831, the court said:
"That this is a proper case for mandamus follows from a consideration of the apposite authorities. Volume 34, American Jurisprudence, section 203, page 974: `Since mandamus does not generally lie to determine mere contract rights, the writ will not be awarded to compel reinstatement of a school-teacher who has been removed and whose relation to the school officers rests wholly in contract. But where the teacher by positive provision of law has a fixed tenure of office, or can be removed only in some prescribed manner, and where, consequently, the removal is not authorized, mandamus will issue, even though another teacher has been selected to fill the position. So, also, the remedy will lie to compel reinstatement of a teacher who has been removed in violation of statutory rights.' The language just quoted fairly reflects California law. The leading cases are Kennedy v. Board of Education, 82 Cal. 483 [22 P. 1042]; Saxton v. Board of Education, 206 *606 Cal. 758 [276 P. 998], and Holbrook v. Board of Education, supra, 37 Cal.2d 316 [231 P.2d 853]."
The court, in Kennedy v. Board of Education, 82 Cal. 483 [22 P. 1042], at page 491, stated:
"The writ of mandamus may issue in this state `to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded.' (Code Civ. Proc., § 1085.)"
In Saxton v. Board of Education, 206 Cal. 758, 766 [276 P. 998], the court said that, "... mandamus is the proper remedy to be invoked by a teacher, wrongfully dismissed from his position, and who holds it not under contract but by virtue of statutory authority."
In People v. Van Siclen, 50 N.Y. Sup. Ct. 537, the court said, "The object being to restore her to a right given her by law, mandamus is the proper remedy."
And in Elevator Operators etc. Union v. Newman, 30 Cal.2d 799, 808 [186 P.2d 1], it was said:
"His claim was based, not on breach of contract, but on the theory that he had a right to reinstatement to the office. It is settled that mandamus does not lie when there is no cause of action for reinstatement to a position, but merely a claim for damages for breach of contract."
In the present case the housing authority was established by law as a public office and the incumbents thereof exercise some of the sovereign powers of the state, while employees of a city or housing authority as such do not exercise such powers.
The appellants claim that the scope of the jurisdiction is limited to determine whether there has been an abuse of discretion and the court has no power to try issues de novo. In appellants' notice to the clerk to prepare the papers on appeal we note that they request one of the exhibits, the transcript of the city council meeting held on August 9, 1960, which was made by the court reporter. In their motion for a new trial appellants constantly refer to the reporter's record and base their motion on the record and documents on file, including the reporter's transcript.
In the court's memorandum nothing is said about the trial being de novo (Munns v. Stenman, 152 Cal. App.2d 543 [314 P.2d 67]), and the scope of the court's jurisdiction is outlined and in particular it was to determine whether there was a fair trial, whether there was any abuse of discretion, and whether the findings of the city council are supported by the weight of substantial evidence (Code Civ. Proc., *607 § 1094.5). In its memorandum opinion the court stated that evidence failed to show fraudulent or arbitrary acts or abuse of discretion by the commissioners in the selection of tenants, that the evidence showed nothing more than the fact that some of the commissioners were absent and the failure to obtain signatures of city officials on state reports was not substantiated nor any proof of any service agreement being signed by the city or the housing authority.
From the testimony before the city council it appears that there were no signatures on the management service contract dated October 15, 1955. [5] Health and Safety Code section 34314 is permissive and not mandatory.
Title 42 of United States Code Annotated, section 1415, subsection 7, covers contracts between the United States Government and local housing agencies.
[6] Appellants have a natural feeling that because under section 34272 of the Health and Safety Code the City of Needles appoints the commissioners of the housing authority, there is an implied cooperative agreement or understanding that because the city is a state agency and the housing authority is in the City of Needles, the citizens have a right to complain to city officials that qualified persons were excluded from occupancy of the low-rent housing facilities.
In Housing Authority v. City of Los Angeles, supra, 38 Cal.2d 853, at page 862, it is stated:
"Each functioning body, the city and the housing authority, is a separate body politic vested with specific duties and powers under the Housing Authorities Law and Housing Cooperation Law to effect a state objective. Neither is functioning independently of that state law. In pursuing the state objective each is governed by the state law and neither may exercise powers not vested or recognized by that law. The city and the housing authority function as administrative arms of the state in pursuing the state concern and effecting the legislative objective."
Appellants feel slighted that the mayor was told that none of the activities of the housing authority was any concern of theirs and that the city council was not invited to attend joint meetings with the housing commissioners or be in on interviews with officials from the Public Housing Authority in San Francisco.
The legislative findings and declaration of policy with regard to housing authorities are outlined in section 34201 of *608 the Health and Safety Code. The financing of such projects has been made by the Public Housing Authority, an agency of the United States Government, and detailed reports as shown by the exhibits were regularly filed with the Public Housing Administration for the current years showing income, outgo, occupancy and many other details. The report for the year ending June 30, 1959, showed the liabilities of the Housing Authority to the United States Government of $430,000.
These housing authorities were set up on either a county or city basis and the Legislature provided for some local interest with respect to appointment of commissioners inasmuch as the city or county must adopt resolutions declaring the need for such an authority. (Health & Saf. Code, § 34270.)
From time to time the Public Housing Administration audits and reviews the reports of the housing agency and makes recommendations and advises the local agency of the changes in federal housing legislation as are shown by the exhibits on file in this matter.
[7] Appellants complain of the prejudicial selection of tenants but cite only one instance and we think that the selection of tenants is a matter of discretion with the housing authority so long as it is not arbitrary and unfair. There seems to be no reference to this matter in the examinations by the Public Housing Authority which regulates such details as to rent and collections as shown by the Public Housing Administration report of April 22, 1958, one of the exhibits.
Appellants complain of the absenteeism of petitioners during their period of office. At least one of the commissioners worked for the Santa Fe at Needles and was required to be away from time to time and according to the testimony of the city manager, Commissioner McReynolds was not absent at any meetings from June 1957 to the date of the hearing; Commissioner Brewer was absent once in 1960, once in 1959, three times in 1958, and four times in 1957, and she was reappointed by the City of Needles in June 1959. There is no evidence as to the number of times Commissioner Duke was absent from meetings.
Appellants state that the court will not substitute its own judgment for that of the administrative body. Government Code section 11523 states that mandate is the proper procedure as to administrative adjudications.
Here we have the question of substantial evidence. The court found that there was no substantial evidence as to the *609 charges; that they were vague, indefinite and that notice of the charges was inadequate. The court could look at the record to see if there was substantial evidence; if not, then grant the writ. Had the court heard the case de novo it might have reached a different finding of fact. (Pranger v. Break, 186 Cal. App.2d 551, 560 [9 Cal. Rptr. 293].)
[3b] We conclude that mandamus was the proper procedure through which petitioners may seek reinstatement to their offices, that the findings of the court below are well supported, and that there was no abuse of discretion on the part of that court.
The judgment is affirmed.
Griffin, P.J., and Shepard, J., concurred.
A petition for a rehearing was denied November 8, 1962.
NOTES
[*] Assigned by Chairman of Judicial Council.
[*] Formerly Rules on Appeal, rule 1.
[**] Formerly Rules on Appeal, rule 2.
[] Formerly Rules on Appeal, rule 3.
[] Formerly Rules on Appeal, rule 2(c).
| {
"pile_set_name": "FreeLaw"
} |
976 F.2d 738
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.Robert Lee BLEVINS, Defendant-Appellant.
No. 91-10437.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 20, 1992.*Decided Sept. 16, 1992.
1
Before KOZINSKI and DAVID R. THOMPSON, Circuit Judges, and VON DER HEYDT,** Senior District Judge.
2
MEMORANDUM***
3
* Defendant Robert Lee Blevins appeals his conviction for distribution of methamphetamine and for possession of methamphetamine with intent to distribute as charged under 21 U.S.C. § 841(a)(1). Blevins argues on appeal that the district court abused its discretion by not asking jury venire members specific questions testing their attitudes and prejudices regarding illegal drugs. Blevins also argues that the trial court erred in giving jury instructions, to which he did not object, which did not include his theory of defense. Because the court's questioning of the jury venire was reasonably sufficient to test for bias or partiality, the district court did not abuse its discretion in not asking the jury venire specific questions testing attitudes and prejudices about illegal drugs. Further, the district court did not err when it did not give an unrequested jury instruction regarding Blevins' theory of defense.
II
4
Blevins maintains that he was entitled to voir dire which would have probed jury bias as to narcotics. The government submits that the inquiry was sufficient under the facts of the case and that the trial court did not abuse its discretion in failing to ask more probing questions regarding experiences with and attitudes towards drugs.
5
The district court advised the prospective jurors it was a drug case. The indictment was read in its entirety to the jury venire. The court then sought and obtained assurances from the entire panel regarding their ability to be fair and impartial. Each juror was individually asked whether there was anything about the nature of the charges which might prevent him or her from being fair and impartial to both sides. The record indicates that upon individual questioning, one potential juror indicated that he might have a problem. Upon further questioning, it was determined that the person in question could be fair and impartial under the circumstances presented by the case.
6
The district court has considerable discretion in determining the appropriate scope and method of jury voir dire. United States v. Toomey, 764 F.2d 678, 682 (9th Cir.1985). Abuse of that discretion occurs if the questioning is not reasonably sufficient to test the jury for bias or partiality. United States v. Jones, 722 F.2d 528, 529 (9th Cir.1983).
7
Blevins argues that one juror responded that he had experienced some repercussion in his life as a result of either drug use or drug-related crimes and that this is evidence that the jury voir dire was inadequate. Blevins' argument is incorrect. The lack of negative responses on the part of prospective jurors regarding their ability to be fair and impartial, given the nature of the case, does not suggest that the jurors were being less than candid. To the contrary, when asked if anyone on the panel or a family member had been a victim of a crime, numerous jurors candidly responded. While it is true that Blevins' questions might have been asked, nothing in the record indicates that the prospective jurors were anything but candid in their responses to the inquiries presented by the district court. To the contrary, the record reflects that the court's general probing elicited responses in areas where jurors had concerns about their inability to be fair and impartial. The result that fewer jurors had concerns regarding their ability to be fair and impartial in a drug related offense than they did in other areas does not support the argument that the voir dire was inadequate. The trial court's questioning was reasonably sufficient to test the jury for bias or partiality.
III
8
Blevins submits that when formal notice of a defense has been given and the defendant then both presents evidence of the defense and argues the defense to the jury, the trial court's failure to so instruct the jury on that defense should be reversible error. Because the jury was not given a defense of exercise of public authority instruction in this case, Blevins maintains that the jury was compelled to find him guilty as charged, and thus he was denied a fair trial.
9
The government maintains that because Blevins' trial counsel failed to suggest an instruction regarding a defense theory of the case, and failed to object to any of the proposed instructions, there was no plain error in failing, sua sponte, to add an instruction on the defendant's theory of the case to the proposed instructions.
10
This case is unlike United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir.1984), where failure to give defendant's proposed instruction on his theory of defense was held to be reversible error. Blevins did not suggest an instruction on his public authority defense, nor did he object to the instructions proposed by the court; therefore, we review the district court's failure to instruct for plain error. United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.1989). Plain error is found only in exceptional circumstances when the error is highly prejudicial, affects substantial rights, and it is highly probable that it materially affected the verdict. United States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir.1990).
11
Blevins was an informant for the Drug Enforcement Agency pursuant to a Cooperating Individual Agreement. He admitted that he could not engage in any criminal activity and that he had no authorization to sell drugs. Blevins testified at trial as to his belief that he felt he had to conduct the drug sale at issue or otherwise it would cast suspicion on him. Blevins had the opportunity to explain to the jury the basis for his action. Blevins argued at trial that he did not have the requisite intent in order to be found guilty of the charged offenses. He further testified that he was selling drugs only because of his fear of what would happen to him if he refused. The instructions allowed the jury the opportunity to find that Blevins did not have the requisite intent in order to be found guilty. The jury, having heard testimony from Blevins and other witnesses, decided these issues against him, and determined that Blevins was guilty as to both counts. The lack of jury instruction as to Blevins' theory of defense could not be considered highly prejudicial, or affect his substantial rights, or result in a high probability that it materially affected the verdict.
12
In addition, given the facts of this case, we see almost no chance that the jury would have found that Blevins acted within his bounds of public authority. Thus, it is possible that counsel's decision not to ask for a public authority instruction was strategic. Moreover, far from what Blevins argues here, he might have been prejudiced if the court had given a sua sponte instruction on public authority.
13
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
The Honorable James A. von der Heydt, Senior United States District Judge for the District of Alaska, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
| {
"pile_set_name": "FreeLaw"
} |
NOTE: ThiS order is n0npreceder1tia1.
United States Court of AppeaIs
for the Federal Circuit
BANCORP SERVICES, L.L.C.,
Plaintiff-Appellant, 4
V.
SUN LIFE ASSURANCE COMPANY OF CANADA
(U-S-),
Defendan.t-Appellee,
AND
ANALE CT LLC,
Defen,dant.
2011-1467
Appea1 from the United StateS District C0ur1; for the
Eastern District of Miss0uri in case n0. 00-CV-1073,
Judge Car0l E. Jacks0n.
ON MOTION
ORDER
BANCORP SERVICES V. SUN LIFE 2
Bancorp Services, LLC moves without opposition for a
21-day extension of time, until March 16, 2012, to file its
reply brief
Upon consideration thereof
IT ls 0RDERE:o THAT:
The motion is g‘rar1ted.
FOR THE CoURT
0 2 /s/ Jan Ho1'ba1}[
Date J an Horba1y
Cle1'k
ccc Charles K. Verhoeven, Esq.
MattheW B. LoWrie, Esq. _ F"_ED
u.s. couR1oF APPEAis mn
s21 rHEl=EnEaALclncun
l`1AR U2 2012
JAN HORBALV
CLEHK
| {
"pile_set_name": "FreeLaw"
} |
Filed 2/12/15 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2015 ND 43
State of North Dakota, Plaintiff and Appellee
v.
Gayne Alan Gasal, Defendant and Appellant
No. 20140147
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Katherine Marilyn Naumann, Assistant State’s Attorney, 511 2nd Avenue SE, Jamestown, ND 58401, for plaintiff and appellee.
John Tainter Goff, 4650 38th Avenue S., Suite 110, P.O. Box 9199, Fargo, ND 58106-9199, for defendant and appellant.
State v. Gasal
No. 20140147
Crothers, Justice.
[¶1] Gayne Alan Gasal appeals from a district court criminal judgment entered upon a jury conviction of hunting without a license and from a district court order denying his motions to suppress evidence obtained after the issuance of a search warrant on his farmstead for two hunting rifles and from statements he made during conversations with the game warden. Gasal argues the district court erred by denying the motion to suppress evidence obtained by an invalid search warrant and by denying the motion to suppress statements obtained in violation of the
Miranda
requirements. We affirm.
I
[¶2] In November 2012, Game Warden Mark Pollert received information Gayne Gasal shot a deer outside the area authorized by his gratis deer tag. After observing two vehicles coming from the described area, the game warden stopped the white pickup truck driven by Gasal and inquired about the deer. Gasal told the game warden the deer was in the truck driven by his son. The game warden asked if he could follow Gasal to his farmstead to look at the deer. Gasal agreed.
[¶3] The game warden followed Gasal to his farm where he met with Gasal’s son, Jarred Gasal, and a minor grandson. The deer was tagged with the grandson’s gratis deer tag. The game warden interviewed all three of the Gasal family members, together and separately. The game warden recorded the interviews without the Gasals’ knowledge. The game warden claimed he witnessed the alleged violation and did not tell the Gasals about receiving information from another source. The Gasals told the game warden the grandson shot the deer using his Ruger rifle. The other rifle used by the hunting party was a Browning. The game warden seized the deer carcass, recovered the bullet and had the bullet analyzed by the State Crime Lab. The analyst informed the game warden that it is unlikely the bullet was fired from a Ruger rifle. Based upon the Gasals’ incongruent story and the lab report, the game warden applied for search warrants for the Ruger and Browning rifles.
[¶4] Search warrants were issued for the residences of Gayne Gasal and Jarred Gasal on December 10, 2012 at 4:15 p.m., but the record includes only the search warrant for the “Ruger M77” at Jarred Gasal’s residence. Both rifles were retrieved from Gayne Gasal’s residence after Jarred Gasal voluntarily surrendered the Ruger rifle and Gayne Gasal surrendered the Browning rifle. A subsequent crime lab report indicated that the Ruger rifle did not fire the bullet lodged in the deer carcass and that the Browning rifle could not be identified or eliminated as firing the bullet lodged in the deer carcass.
[¶5] Gasal was charged with hunting without a license. Gasal moved to suppress evidence, alleging his Fourth Amendment rights were violated because the warrant was not dated. Gasal also moved to suppress statements he made to the game warden, arguing the game warden violated his right against self-incrimination, a violation of the
Miranda
requirements.
Miranda v. Arizona
, 384 U.S. 436 (1966). The district court denied Gasal’s motions to suppress, and the jury found him guilty of hunting without a license. Gasal appeals.
II
[¶6] When reviewing a district court’s decision on a motion to suppress:
“We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.”
State v. Genre
, 2006 ND 77, ¶ 12, 712 N.W.2d 624 (citations omitted). “Questions of law are reviewed under the de novo standard of review.”
Id.
“Whether a suspect is ‘in custody’ and entitled to a
Miranda
warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal.”
Genre
, at ¶ 23.
III
[¶7] Gasal argues the search warrants are facially invalid because they were not dated, nor were the supporting applications and affidavit dated, requiring the evidence seized as a result of the search to be suppressed. Gasal argues the absence of a date violates Rule 41(c)(1)(D), N.D.R.Crim.P., which provides, “The warrant must be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It must command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property or person specified.” Gasal argues the absence of a date renders the warrant facially invalid because he could not determine whether the warrant was valid when executed or if it was executed within the ten-day period. The district court found:
“In
State v. Bollingberg
, 2004 ND 30, ¶ 19, 674 N.W.2d 281 it was held that technical errors do not invalidate a warrant. In this instance, however, omission of the date is not a technical error, or any sort of error, since placing the issuance date on a search warrant is not required by Rule 41 N.D.R.Crim.P. or N.D.C.C. Chapter 29-29. There is no Fourth Amendment violation.”
[¶8] Rule 41, N.D.R.Crim.P., “is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution.” N.D.R.Crim.P. 41, Explanatory Note. Suppression is the appropriate remedy for violations of the provisions of N.D.R.Crim.P. 41 under some circumstances.
See, e.g.
,
Roth v. State
, 2007 ND 112, ¶ 31, 735 N.W.2d 882;
State v. Fields
, 2005 ND 15, ¶ 14, 691 N.W.2d 233. “However, not every violation of N.D.R.Crim.P. 41 results in suppression of evidence.”
State v. Scholes
, 2008 ND 146, ¶ 12, 753 N.W.2d 377.
[¶9] “Rule 41, N.D.R.Crim.P., was drawn from Rule 41, F.R.Crim.P., and therefore, we give great weight to the construction placed on it by the federal courts.”
State v. Runck
, 534 N.W.2d 829, 831 (N.D. 1995) (citing
State v. Rueb
, 249 N.W.2d 506 (N.D. 1976)). “Federal courts have construed Rule 41, F.R.Crim.P., so that a violation of the ministerial aspects of the rule very seldom results in the suppression of evidence.”
Runck
, at 832. “But a violation of Rule 41(d) can lead to exclusion ‘when there is a showing of prejudice, or an intentional and deliberate disregard of the rule.’”
Id.
(quoting
United States v. Kelly
, 14 F.3d 1169, 1173 (7th Cir. 1994)). Gasal argues the absence of a date violates Rule 41, rendering the warrant invalid. The district court found the date was not a requirement under Rule 41.
[¶10] In
Runck
, this Court concluded that “leaving an unsigned and undated copy of the search warrant at a farmstead was a ministerial violation of Rule 41, N.D.R.Crim.P., that does not warrant suppression of the evidence seized upon execution of the warrant.” 534 N.W.2d at 832;
see also
United States v. Smith
, 720 F.3d 1017, 1020 (8th Cir. 2013) (finding a warrant with an incorrect date a mere technicality that did not invalidate the search warrant). Even if the omission of the date is a ministerial error, there must be “a showing of prejudice, or an intentional and deliberate disregard of the rule.”
Runck
, at 832 (quoting
Kelly
, 14 F.3d at 1173).
Runck
acknowledges that while the unintentional absence of a date would not invalidate a warrant under the prejudicial test, continued noncompliance or common practice of executing warrants without a date may warrant suppression. 534 N.W.2d at 832.
[¶11] Gasal argues he was prejudiced because he could not determine the validity of the warrant in terms of staleness, noting the incident and initial interviews took place over a month before officers executed the warrant. Gasal offers no evidence of prejudice or how he would have acted differently. Moreover, Gasal, after speaking with his lawyer, voluntarily showed law enforcement where the rifle was located. Jarred Gasal also voluntarily gave law enforcement his son’s rifle. Gasal did not argue either “an intentional [or] deliberate disregard of the rule.”
Runck
, 534 N.W.2d at 832 (quoting
Kelly
, 14 F.3d at 1173). The game warden testified he did not intentionally omit the date on the warrant. He testified the State’s Attorneys usually prepare a warrant for him, but in this case, he prepared the warrant himself, using a template faxed over from a police department. The error was not deliberate or an intentional disregard of the rule.
[¶12] Alternatively, Gasal argues the absence of a date on the warrant is clerical error. Gasal relies on Rule 36, N.D.R.Crim.P., to explain and define “clerical errors.” Gasal notes under Rule 36, “if the error or omission is indeed a judicial error, rather than a clerical mistake, it is not within the purview of the rule.”
United States v. Kaye
, 739 F.2d 488, 491 (9th Cir. 1984). However, the Eighth Circuit explained Rule 36 is inapplicable in search warrant cases because Rule 36 analyzes “the ability of a district court to correct its own mistake in an order, judgment, or other parts of the record under Federal Rule of Criminal Procedure 36.”
Smith
, 720 F.3d at 1020 (finding Rule 36 cases irrelevant to determination of whether a clerical error invalidates a search warrant). We agree with these federal courts and conclude Rule 36, N.D.R.Crim.P., does not apply to search warrants and does not render these warrants invalid.
[¶13] Omission of the date on the warrant does not itself require suppression of the evidence seized upon execution. Nor is suppression required without proof of prejudice or intentional disregard for the rule. The district court did not err in denying Gasal’s motion to suppress evidence based upon the absence of the date on the warrant and without proof of prejudice or intentional disregard of Rule 41. The decision is supported by competent evidence and is not contrary to the manifest weight of the evidence.
IV
[¶14] Gasal argues the district court erred by failing to suppress statements obtained in violation of the
Miranda
requirements. The district court found no Fifth Amendment violation occurred because the game warden never became coercive or reached the kind of restraint associated with
Miranda
requirements.
[¶15] “In
Miranda v. Arizona
, 384 U.S. 436, 444 (1966), the United States Supreme Court held that a defendant’s statements during custodial interrogation were inadmissible in criminal proceedings unless procedural safeguards had been employed to secure the privilege against self-incrimination afforded by the Fifth Amendment to the United States Constitution.”
State v. Beaton
, 516 N.W.2d 645, 648 (N.D. 1994). The Supreme Court observed that “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”
Miranda
, 384 U.S. at 458.
“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
State v. Fasching
, 453 N.W.2d 761, 763 (N.D. 1990) (quoting
Miranda
, at 444).
[¶16] “A suspect is in custody when there is a formal arrest or restraint on the suspect’s freedom of movement to the degree associated with a formal arrest.”
Genre
, 2006 ND 77, ¶ 23, 712 N.W.2d 624. “When determining if a person is subject to custodial interrogation the court examines all circumstances surrounding the interrogation and considers what a ‘reasonable man in the suspect’s position would have understood his situation.’”
Id.
(quoting
State v. Martin
, 543 N.W.2d 224, 226 (N.D. 1996)).
[¶17] “Whether a suspect is ‘in custody’ and entitled to a
Miranda
warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal.”
Genre
, 2006 ND 77, ¶ 23, 712 N.W.2d 624.
“A district court’s conclusions concerning custody are reviewed under the ‘clearly erroneous’ standard and the circuit court ‘must affirm unless the decision of the district court is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or in light of the entire record we are left with a firm and definite conviction that a mistake has been made.’”
United States v. Giffin
, 922 F.2d 1343, 1347-48 (8th Cir. 1990) (quoting
United States v. Jorgensen
, 871 F.2d 725, 728 (8th Cir. 1989)).
[¶18] “[T]he relevant factors to be considered in making a determination of custody include an accused’s freedom to leave the scene, and the purpose, place and length of the interrogation.”
Giffin
, 922 F.2d at 1348. The Eighth Circuit explained:
“This inquiry into the indicia of custody has generally focused on an examination of (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.
“While the foregoing list is decidedly non-exhaustive, the presence or absence of these particular indicia of custody have been influential in this court’s assessment of the totality of the circumstances surrounding an official interrogation. The first three of these factors may be fairly characterized as mitigating factors, that is to say the affirmative presence of one or more of these factors during questioning would tend to mitigate the existence of custody at the time of the questioning. Conversely, the remaining three factors may be characterized as coercive factors, which is to say that the affirmative presence of one or more of these factors during questioning would tend to aggravate the existence of custody.”
Giffin
, at 1349.
[¶19] The district court, reviewing each factor, found, “When everything is taken into consideration this is not a custodial situation. Undoubtedly the Gasal family was restricted to some degree by [the game warden], but it must be remembered that Gayne Gasal consented to the investigation and questioning. . . . The situation, however, never became coercive or reached the kind of restraint associated with an arrest.” The district court found the game warden never told the Gasals they were under arrest or even threatened arrest, and the sort of restraints normally associated with arrest or custody were absent. The court also found Gasal willingly allowed the game warden onto his farm and made no effort to exclude the game warden or terminate the interview. It considered that the game warden lied to the Gasals when he told them he witnessed the alleged violation but found the game warden did not use strong arm tactics or intimidation, no police dominated atmosphere existed that would effect the suspect’s will to resist self-incrimination and the end of the interview did not result in arrest. We conclude no
Miranda
violations occurred and Gasal’s Fifth Amendment rights were not violated. The district court’s findings are supported by evidence and are not clearly erroneous.
V
[¶20] The district court did not err by failing to suppress statements obtained in violation of the
Miranda
requirements. The omission of the date on the warrant does not warrant suppression of the evidence seized upon execution of the warrant because no prejudice or intentional disregard for the rule occurred. The search warrant was not facially invalid. We affirm the district court criminal judgment and order denying Gasal’s motions to suppress evidence.
[¶21] Daniel J. Crothers
Lisa Fair McEvers
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
I concur in the result.
Dale V. Sandstrom
| {
"pile_set_name": "FreeLaw"
} |
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Buford D. Battle
State Auditor
Austin, Texas
Dear Sir: Opinion No. o-3547
Re:
y have your letter on, 194w,as
r0ims :
romtheRura1 Ma
ommon Sahool Dis-
the name of Sophia
E. Montgomery as a 0010 that sohool. ,Upon
investigationi person was in fast
perrorming the ervising Teaoher.
slingto Joanes
w-first .Biekmial
oatian, 193&3-1999
atioh Foundation & present is
anes E’una, to the payment 0r the
Jeanes Teaohers in thirty oountiss
eaohers.arenot assignedto any partiou&r
demonstrationteaohing, supervisoryaa
in all of the oomm&n schools of the County.
ese teaohers are several fold. They work
with the teaobers and pupils of the several eahooltiin an
errort to make the sohool wsrk more orfectivethrough improved.
met3kMs-.orinstruotion,the ao@sition or libraries,~improve-
ment in attenaanoo,ana a better adjustment of the curriculum
to insure improvementin health and eaonomic conditionsamong
the Eegro paople of the communities. They also stimulate
the organizationand work of the Parent-TeacherAssociations
\,‘-b,
,, i.
.I, .’
Honorable Buford D. Battle, Rage 2
and Jeanes Clubs ,forthe purpose of improving the sohool
houses, equipment,libraries and grounds. They work with
the Women's Clubs in the canning and preservingof fruits,
vegetables and meats, and in the meking of plain clothes,
quilts, mattresses, etc.
*In your opinion may or may not this school district
claiming reimbursementupon a Jeanes SupervisingTeacher
be allowed suoh reimbursementfrom the Rural Aid fund in
the same manner as would be allowed on a regular teacher?
*Your opinion is further requested as to whether or
not the trustees of Tennessee Colony District No. 21 of
Anderson County could legally contract.topay 100% of
Sophia %. Montgomery's salary for performing the duties
of a Jeanes SupervisingTeacher."
If we were to assume the ft&:oorreotness ottthe.
statement quoted by you from the Report of the State Department
of Rduoatien we would be osmpelled to answer your first question
in the negative, notwithstandingthe fact of the Joint Legisla-
tive Advisory Committee'shaving sustainedthe position of the
State Department of Education to the contrary as hereinafter
appears.
The ourrent Rural Aid AppropriationBill, H. B. 933,
46th Legislature, sets out in detail the purposes for v&ioh
the Rural Aid Fund may be expended and preseribeethe showings
whioh a sohool must make in order to receive aid therefrom.
.Nowherein the Aot is there any authority to use any of this
fund for the purpose or paying a teaeher who is *not assignea
to any partioularsohool* but who does *demonstrationteaohlng,
supervisoryand instructionalwork in all of the oommon schools
of the county." From Seotlon 7 of this Act we quote:
.-,
wSalary Schedule. No part of the aid herein provided
shall be used for inoreasgng the monthly salary of any
teacher, except as herein authorized,and fwnds provided
for in this Act shall be used for the exclusive purpose
or extetiing the length of the soheol term of the schools
situated in the district receiving such aid onthe basis
or a sohedule of teachers' salaries as determined by the
$t$,t,e
Bzard of Education for the school Year 193S-39;
.
,
Honorable Buford D. Battle, Page 3
In Section 13 we find the following:
"Applicationfor Aid. The trustees oUtbe schools
authorized to apply for aid under the provisions of this
Act shall send to the State Superintendentof Public
Instructionon forms provided by,said authority a list
of the teachers employed in the sehools showing the
monthlysalary, experienoe,and training of each,
together with an itemized statement of budgeted receipts
and expenditures,the lengthof term, and such other
informationas may be required, and the State Superin-
tendent, under the directionof the Joint Legislative
Advisory Committee may, subject to the provisions of
this Act, grant to the sohool such an amount of this
fund as will, with,the State and County available funds,
togetherwith the local funds, maintain the sohool for
a term not to exoeed nine (9) months for olassifiea or
affiliatedhigh sohools and approximatelyeight (8)
months for unaooroditeahigh sahools; provided that ii
. the school has suffioientState ana County available
funds to maintain the school for an eight (8) month term
according to the salary schedule adopted by the State
Board of Eauoation for the school year 1938-1939 or with
its local maintenance tax, to maintain the desired length
of term, not to exceed nine (9) months, as provided in
Section 8, it shall not be eligible to reaeive aid;
provided further, that the County Superintendent,,subject
to the approval of the State Superintendentof Public
Instruction, shall approve all oontractswith teaohers,
supervisingorricers, and bus drivers in all schools
before suoh sohools may be eligible to reoeive aid
under any providiona of this Act. Provided, also,
that all aid granted out of the funds herein provided
shall be allotted only on the basis of need, based upon
a proper budgeting of eaoh district asking for any form
0r aid. The applioation shall be sworn to by the County
Superinteodent,presiaent and seoretary of ~theboard of
trustees of eadh or the sohools applying for aid. All
aid grantea out of the funds Iprovidedshall be almt.3a
only on the basis of need based upon an approved budget
of ea& aistriot asking ror any $+oFl*ofaia, except as
otherwiseprovided in this Aot. .tl
Honorable Buford D. Battle, Page 4
We have noted the creation of the Joint Liegislative
Advisory Committee in Section 1 and the power given fhat
Committee to adjust disputes. Sections 1, 12 end 17. But, no
attempt was made to give such Committee the power - in settling
disputes - to enlarge upon the purposes ror which the money
might be used. On the contrary,we find this provision in
Section 12, viz:
w* * * Provided, however, that no regulationof
the State Superintendent,'StateBoard of Education or
Joint LegislativeAdvisory Committee shall conflict
;i$h*yy provisions of this Act or any present statute.
.
The payment of the salary of a Jeanes teacher to
serve in all the common schools of the county as outlined in
the quoted statelPentfrciethe Report would not be aiding the
Tennessee Colony ConnaonSchool District to extend the length
0r its sohool tow.
However, it is noted that you merely quote from
the Biennial Report of the Department of Educationwithout
advisingus that the statements therein made are aerinitely
true. ,We have before us the minutes of a meMiing of the
;;I;t LegislativeAdvisory Committee held on February 17?
. It therein appears that the Committee had before it
a letter 0r appeal from State SuperintendentWoods advising
that the State Auditor had disapprovedsuch use of the Jeanes
teachersand was insistingupon the deletion of their salaries
from the budget. In that 'letterwe find this statement:
Fmis orrice hc3.51
r0ii0vfea a poling for the last
several years Or permitting county superintendentsma
local school boards to select a negro, qualifiedto
serve as what is known as a Jeanes teaoher,who would
be attaehed to and work some in a rural aid school and
at the same time do some supervisorywork in the ether
colored sohools or the county. These teaahers were
not attached until the school was entitled to a teacher
as provided in Section 4 of the law. As stated before,
this has been approved by this office and by the State
Auditor for several yea2X.”
Honorable Buford D. Battle, Page 5
The advisory Committee sustainedthe action of
the Department of Education in paying these teaohers.
Mr. Woods' letter to the Committeewould seem to indicate
that such a teacher is attached to or employed by a partioular
school for actual teaohing purposes in that school and that
the supervisorywork is additional. If this is the case the
action of the Department of Education and SupervisoryCommittee
may well have been proper. But, if the facts sre as represented
in the quoted statement from the Biennial Report and Sophia E.
Montgomery'sduties are the same with respect tx the Tennessee
Colony school as they are to the other schools and she is
listed as a teacher in that particular school only for the
purpose of enabling her to be paid out ofthe Rural Aid ?J'und,
we would be oompelled to answer your first question in the
negative.
Thus our answer depends upon the fasts as they
actually exist. We trust the above will be ef suffioient
guide to ysu.
Without being definitelyadvised on the facts we
prefer not to attempt to answer your second question.,
Yours very truly
ATTORNEY GENElUTi03'TIEUS
BY (Signed)GLENN R. LW’IS
~ Glean B. Lewis
Assistant
GRL:ej
APPROVXD BaaY29, 1941
(Signed) GROVXR SELLERS
FIRST SSSISTART ATTCRmLGER'=AD
APPROVED oPmIoa COlVSWITTEE
By BWB Chairman
| {
"pile_set_name": "FreeLaw"
} |
974 F.2d 1343
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.David C. ROSEVELL, Plaintiff-Appellant,v.George DEEDS, Warden, et al., Defendant-Appellee.
No. 91-16352.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 24, 1992.*Decided Sept. 1, 1992.
Before BRUNETTI, RYMER and KLEINFELD, Circuit Judges.
1
MEMORANDUM**
2
Former Nevada state prisoner David Rosevell appeals pro se the district court's summary judgment in his civil rights action under 42 U.S.C. § 1983. Rosevell contends that the defendants were deliberately indifferent to his medical needs in violation of the eighth amendment of the United States Constitution. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
3
We review the district court's grant of summary judgment de novo. Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir.1991), cert. denied 112 S.Ct. 2995 (1992). Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows 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. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).
4
To state a section 1983 claim based on a violation of his eighth amendment right to adequate medical care, Rosevell must show that the prison officials acted with deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 105 (1976). Deliberate indifference to serious medical needs means the "unnecessary and wanton infliction of pain." Id. at 104. Moreover, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim [under section 1983]...." Id. at 106; see Toussaint v. McCarthy, 801 F.2d 1080, 1113 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987).
5
Here, Rosevell challenged the medical treatment he received for his narcolepsy while he was incarcerated in the Nevada Department of Prisons ("NDOP"). Rosevell contends that the defendants denied him medication for at least eight months, and when medication was prescribed, it was not effective because it caused serious side effects.1 He also argues that the defendants should have monitored his condition more frequently.
6
The defendants submitted evidence showing that Rosevell had been examined on numerous occasions by NDOP physicians as well as outside medical consultants. See Estelle, 429 U.S. at 107. According to his medical record at NDOP, Rosevell received medication for hypertension and cataplexy, and his EEG and C.T. Scan results were normal. Although new medication to treat Rosevell's narcolepsy was prescribed eight months after his arrival, the delay did not constitute an eighth amendment violation because no substantial harm occurred. See Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.1990) (delay in treatment did not rise to level of deliberate indifference absent substantial harm).2 Our review of the record indicates that the defendants' actions did not constitute deliberate indifference to Rosevell's medical needs, and therefore, the district court properly granted summary judgment. See Estelle, 429 U.S. at 105.
7
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Rosevell states that Ritalin, a drug used to treat narcolepsy, should have been prescribed for his condition. The defendants, however, refused to prescribe Ritalin because Rosevell had high blood pressure and the drug is "contraindicated in people with high blood pressure."
2
Rosevell contends that because of the defendants' conduct, he feared for his life while incarcerated. This does not establish a "substantial harm." See Wood, 900 F.2d at 1335
| {
"pile_set_name": "FreeLaw"
} |
348 B.R. 834 (2006)
In re Brenda C. ELDRIDGE, Debtor.
Estate of Elbie Chism, Plaintiff,
v.
Brenda C. Eldridge, Defendant.
Bankruptcy No. 05-04991-BGC-7, Adversary No. 05-00190.
United States Bankruptcy Court, N.D. Alabama, Southern Division.
August 30, 2006.
*835 *836 J. Blair Shores, Legal Services Alabama, Inc., Birmingham, AL, for Debtor.
Memorandum Opinion
BENJAMIN COHEN, Bankruptcy Judge.
The matters before the Court are:
1. A Motion for Judgment on the Pleadings (Proceeding No. 13) filed on December 9, 2005, by the defendant-debtor;
2. A Motion for Summary Judgment (Proceeding No. 14) filed on December 12, 2005, by the plaintiff;
3. A Response to Debtor's Motion for Judgment on the Pleadings (Proceeding No. 17) filed on December 30, 2005, by the plaintiff;
4. A Response to Motion for Summary Judgment (Proceeding No. 18) filed on December 30, 2005, by the defendant-debtor;
5. An Objection to and Motion to Strike Affidavits of Darlene Winston, Patricia Semancheck, and Joyce Perkins Filed in Support of Plaintiff's Motion for Summary Judgment (Proceeding No. 19) filed on January 13, 2006, by the defendant-debtor;
6. A Motion to Strike (Proceeding No. 29) filed on July 5, 2006, by the plaintiff;
7. A Debtor's Objection to Plaintiff's Motion to Strike (Proceeding No. 30) filed on July 7, 2006, by the defendant-debtor.
A hearing on all matters, except items 6 and 7, was held on February 7, 2006. Mr. William C. Veal, the attorney for the plaintiff, and Mr. Ronald E. Boackle, the attorney for the defendant, appeared. The matters were submitted on the pleadings, affidavits, and other documents submitted by the parties, the record in this adversary proceeding, the record in Bankruptcy Case No. 05-04991-BGC-7, and the arguments and briefs of counsel. As explained below, this Court finds that the pending adversary proceeding is due to be dismissed.
*837 I. Background
Neither of the parties believes that a trial is necessary to resolve the matters before the Court. Neither believes that the other is entitled to a trial. And each believes that it is entitled to a judgment in its favor, again without a trial. As discussed below, the Court agrees. A trial is not necessary, and all matters may be resolved without further hearings or arguments.
The question raised by the complaint is whether a debt the plaintiff contends is owed by the defendant is dischargeable through this bankruptcy case.[1]
II. The Parties' Positions
A. The Plaintiff
The plaintiff's procedural position is contained in its Motion for Summary Judgment filed December 12, 2005. The plaintiff contends that it is entitled to summary judgment because: (1) the state probate court's judgment conclusively established that Mrs. Eldridge committed, "fraud or defalcation for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny," for purposes of 11 U.S.C. § 523(a)(4); and, (2) this Court is bound by that ruling because the doctrine of "collateral estoppel" precludes the debtor from relitigating that issue in this proceeding. The plaintiff concludes that because the requirements of section 523(a)(4) are met, the debt it contends it is owed by the debtor is a nondischargeable debt.[2]
The plaintiff concludes that the probate court has already ruled in its favor and as such there are no genuine issues of material fact, and that based on the probate court judgment, it is entitled to judgment here on the dischargeability question, as a matter of law.
B. The Defendant-debtor
The defendant-debtor's procedural position is contained in her Motion for *838 Judgment on the Pleadings filed on. December 9, 2005.[3] The debtor contends that the present proceeding must be dismissed because this plaintiff did not have the right to bring the pending complaint against the debtor. In legal terms, the debtor argues that the plaintiff did not have lawful "standing" to maintain the pending action.[4] As Justice Lewis F. Powell, Jr. wrote for the U.S. Supreme Court in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), standing "is the threshold question in every federal case, determining the power of the court to entertain the suit." Id. at 499, 95 S.Ct. 2197.[5]
As the last sentence indicates, this Court must address the question of standing first. If the plaintiff does not have standing, there are no other issues to decide.
III. Issue
The threshold issue is: Did the plaintiff have standing to bring the pending complaint? As discussed below, the Court finds that the plaintiff did not have standing, therefore there are no remaining issues to be considered, and the pending action must be dismissed.
IV. Findings of Fact
Mrs. Elbie Chism was the debtor's mother. On November 12, 1996, Mrs. Eldridge, the debtor-defendant, was appointed as guardian for her mother and conservator of her mother's estates.[6] At that time, Mrs. Chism was suffering from serious medical problems. Mrs. Chism died on June 13, 2002.
At the time of Mrs. Eldridge's appointment, Mrs. Chism was either residing with Mrs. Eldridge, or moved in with her, where she was cared for by Mrs. Eldridge and the members of Mrs. Eldridge's immediate family. That care was rendered around the clock for the next six years until Mrs. Chism died.[7]
Also at the time of Mrs. Eldridge's appoint, a bond in the amount of $10,000 was set by the probate court and posted by Mrs. Eldridge's surety company.
Shortly after her appointment, Mrs. Eldridge filed an inventory of Mrs. Chism's estate with the probate court on November 19, 1996.[8] That document indicates that Mrs. Chism's estate consisted of her house, a $4,300 certificate of deposit at the First National Bank of Jasper, $730 a month in social security benefits, and $65 per month in pension benefits.
Around February 18, 1997, Mrs. Eldridge sought and obtained an order from the probate court permitting her to use $806.47 each month from Mrs. Chism's estate for her support and maintenance, *839 which, of course, represented all of the income that she was receiving from her pension and social security.[9] At that same time, Mrs. Eldridge obtained an order from the probate court authorizing her to sell Mrs. Chism's home by private sale for $50,000.[10]
On September 13, 2001, the probate court entered an order that removed Mrs. Eldridge as conservator of Mrs. Chism's estate and directed her to file a final settlement within 30 days of that date.[11] That order stated it was entered in response to a "Motion to be Relieved on Bond" filed by Mrs. Eldridge's surety.
Mrs. Eldridge did not file a final settlement as directed by the probate court. Consequently, on May 9, 2002, the probate court directed Mrs. Eldridge's surety to file a final settlement within 30 days of that date.[12] As stated above, Mrs. Chism died on June 3, 2002.
On November 21, 2002, Mrs. Eldridge's surety filed a document entitled "Petition for Final Settlement by Surety." That document read in part:
Comes now the petitioner, TRINITY UNIVERSAL SURETY COMPANY, as surety on the bond of the Conservator in the estate of Elbie Chism, a protected person (by and through one of its attorneys of record) and pursuant to this Court's Order of May 9, 2002, copy attached as Exhibit A, respectfully submits to this Court the following report of the acts and doings, to the best of its knowledge and information, for the period from November, 1996 to August, 2002.
1. Brenda Eldridge was appointed Conservator by this Court on November 19, 1996; and said conservatorship is now pending in this Court. A copy of said Letters of Conservatorship are attached hereto as Exhibit B.
2. An Inventory was filed by said Conservator on or about November 19, 1996, a copy of which is attached hereto as Exhibit C.
3. A Petition to Sell Property of Ward for Reinvestment was filed by said Conservator on or about December 11, 1996 and was granted by this Court on February 18, 1997. A copy attached as Exhibit D.
4. A Petition for Maintenance and Support of a Protected Person was filed by the Conservator on or about December 11, 1996 and was granted by this Court on February 18, 1997. A copy attached as Exhibit E.
5. A copy of the Closing Statement related to sale of the property is attached hereto as Exhibit F.
6. It appears that the ward's only income was her Social Security check and a check for $65 a month from GATX Pension Fund.
7. As a result of petitioner's efforts to locate all of the assets belonging to *840 the ward pursuant to the Inventory filed by the Conservator, the petitioner reports as follows:
a. House and Lot at 781 Main Street. This property was sold as stated in paragraphs 3 and 5 above. The proceeds from the sale of this property could not be accounted for in the conservatorship bank account. If the ward had another bank account or investment account, it has not been located by the petitioner, after a written inquiry to known financial institutions in the greater Birmingham area.
b. Certificate of Deposit in the amount of $4,300 at the First National Bank of Jasper. This CD is no longer at the First National Bank and its disposition can not be ascertained. According to bank officials, their records are destroyed after five or six years and no record could be found of this CD. The proceeds from this CD could not be accounted from in the conservatorship bank account.
8. For the period from November, 1996 to August, 2002, the Conservator made numerous deposits and wrote numerous checks on the bank account of the conservatorship. Attached hereto are copies of the those bank statements and checks, marked as Exhibit G. These statements were provided Regions Bank directly to the petitioner. None of the information came from the Conservator. As is shown on the enclosed statements the beginning balance was $130 and the present balance is $856.65.
9. There has been no accounting or partial settlement of this conservatorship by the Conservator.
10. The Conservator, Brenda Eldridge, was removed as conservator on September 13, 2001.
11. The ward died on June 3, 2002.
12. To the knowledge of the petitioner, no administration of the ward's estate has been opened in any court.
13. Listed below are the names and addresses of the ward's nearest adult kin as represented on the original Petition for Letters of Guardianship and Conservatorship filed by the Conservator:
1. Pat Samencheck, daughter, Kitty Hawk Circle, Gulf Breeze, FL 32561;
2. Betty Joyce Perkins, daughter, 1033 Mullberry Hills Road, Hayden, AL 35079;
3. Barbara Darlene Winston, daughter, 7760 Hanahan Place, Lake Worth, FL 33467;
4. Bobby Randall Chism, son, 1180 Mullberry Hills Road, Hayden, AL 35079;
5. Brenda Eldridge, daughter, 2412 5th Street NW., Birmingham, AL 35215.
WHEREFORE, the petitioner submits the foregoing report and requests that this Court appoint a day for hearing this settlement, give such notice of same to the ward's personal representative, or, if none to such administrator ad litem as this Court shall appoint, including due notice, service and appointment of a guardian ad litem, if appropriate, examine and audit said report of account, state the same and render a decree passing said account as stated and record same, and fix, determine and allow the petitioner and its attorney such fees and awards as may appear fair and just with respect to their services and expenses in the premises. The petitioner further requests that the said surety be henceforth discharged from all other or further liability for or on account of the administration of said conservatorship.
*841 Petition for Final Settlement by Surety dated November 21, 2002 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)).
According to the affidavits of three of the debtor's sisters, Ms. Darlene Winston, Ms. Joyce Perkins, and Ms. Pattie Semancheck, which were filed by the plaintiff in support of its summary judgment motion, a hearing was held in the probate court on the surety's petition for final settlement on January 29, 2003. Attending were the three affiants; Mr. Larry Merchant, a representative of the Probate Court; Ms. Judy Shepura, the attorney for the surety; and Ms. Anita Terry Tye, who is identified in two of the affidavits as "the attorney for the Estate," and in the other as "representing the heirs."[13]
Based on the information before it, on January 29, 2003, the probate court entered a judgment against Mrs. Eldridge. That judgment is the subject of the nondischargeability complaint pending before this Court. The probate court's order provided:
This cause comes on to be heard for examining and auditing the account heretofore filed by Judy B. Shepura as Attorney for Trinity Universal Surety Company, as Surety on the bond issued to Brenda Eldridge as Conservator of the estate of Elbie Chism, a Protected Person, now Deceased, for a final settlement of said conservatorship, now comes the said Judy B. Shepura as Attorney for Trinity Universal Surety Company, as Surety, and moves the Court to proceed with said settlement.
It appears to the Court from proper evidence that due notice of the time and nature of said settlement has been given in strict accordance with law, the Surety being present at said settlement hearing, and no person having appeared to contest said settlement or any part thereof; the Court, having examined and audited said account for final settlement, proceeds to state the same.
It appears to the Court that the said Trinity Universal Surety Company, as Surety, is chargeable with the sum of $59,775.85, as shown by its account of the assets received by it, in addition to the following charges:
Court costs $ 846.00
Earnest money charged back on
sale of house $10,000.00
Charge back on sale of house $40,068.50
Charge back on Certificate of
Deposit $ 4,300.00
leaving a total charge of the sum of $114,990.35, due said Ward.
Whereas it appears to the Court that the said former Conservator, Brenda Eldridge, has breached her fiduciary duty to her said Ward, therefore a Judgment is rendered against Brenda Eldridge and her bond company, Trinity Universal Surety Company, in favor of the Deceased estate of Elbie Chism, in the sum of $114,990.35, and Judgment ordered to be paid to Jefferson County Probate Court Trust Fund for the Personal Representative of the Deceased estate of Elbie Chism. Trinity Universal Surety Company is hereby ordered to pay the penal sum of their bond in the amount of $10,000.00 to the Jefferson County Probate Court Trust Fund. Upon payment of said sum, the Court is directed to transfer and assign said judgment to the payor.
It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the said account and vouchers, as stated, be and the same are *842 hereby passed and allowed and ordered to he recorded. It is further ORDERED that the costs of this proceeding be and hereby are taxed against the former Conservator, Brenda Eldridge, for all of which execution may issue and from the operation and effect of this decree there can be no claim of exemption as to personal property asserted.
Decree on Final Settlement dated January 29, 2003 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)) (emphasis added).
The court also executed a separate document that same date entitled "Decree Rendering Judgment." That document read:
WHEREAS, in the above estate of Elbie Chism, a Protected Person, now Deceased, it is the opinion of the Court that the former Conservator, Brenda Eldridge, has breached her fiduciary duty to her said Ward, and Judgment is hereby rendered against Brenda Eldridge and her surety, Trinity Universal Surety Company, in favor of the Deceased estate of Elbie Chism, in the sum of $114,990.35. Trinity Universal Surety Company is hereby ordered to pay the penal sum of their bond in the amount of $10,000.00 to the Jefferson County Probate Court Trust Fund.
It is therefore ORDERED, ADJUDGED, AND DECREED that upon payment of said sum to the Jefferson County Probate Court Trust Fund for Personal Representative of the Deceased estate of Elbie Chism, the said Court is directed to transfer and assign said judgment to the payor.
Decree Rendering Judgment dated January 29, 2003 (Exhibit D to Motion for Summary Judgment (Proceeding No. 14) filed on December 12, 2005, by the plaintiff) (emphasis added).
Mrs. Eldridge filed her Chapter 7 petition on May 20, 2005.
The plaintiff filed the pending adversary proceeding on August 22, 2005. The named plaintiff in the proceeding is "the Estate of Elbie Chism, a protected person now deceased." In contrast to the designation of the "named" plaintiff, there is nothing in the complaint that suggests an administration of Mrs. Chism's estate has been instituted in the probate court, or that any will has been submitted for probate to that court, or that a personal representative has been appointed to administer Mrs. Chism's estate.
V. Conclusions of Law
A. The plaintiff lacks standing because the judgment on which its complaint is based was assigned absolutely to the surety.
1. Factual Conclusions
The probate court's "Decree on Final Settlement" unequivocally mandates that, upon payment by the surety of the amount of its bond into the probate court, the judgment against Mrs. Eldridge would be assigned and transferred to the surety. The court's decree reads:
Whereas it appears to the Court that the said former Conservator, Brenda Eldridge, has breached her fiduciary duty to her said Ward, therefore a Judgment is rendered against Brenda Eldridge and her bond company, Trinity Universal Surety Company, in favor of the Deceased estate of Elbie Chism, in the sum of $114,990.35, and Judgment ordered to be paid to Jefferson County Probate Court Trust Fund for the Personal Representative of the Deceased estate of Elbie Chism. Trinity Universal Surety Company is hereby ordered to pay the penal sum of their bond in the amount of $10,000.00 to the Jefferson County Probate Court Trust Fund. Upon payment of said sum, the *843 Court is directed to transfer and assign said judgment to the payor.
Decree on Final Settlement dated January 29, 2003 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24))(emphasis added).
The court plainly reiterated that mandate in its "Decree Rendering Judgment". That decree reads:
WHEREAS, in the above estate of Elbie Chism, a Protected Person, now Deceased, it is the opinion of the Court that the former Conservator, Brenda Eldridge, has breached her fiduciary duty to her said Ward, and Judgment is hereby rendered against Brenda Eldridge and her surety, Trinity Universal Surety Company, in favor of the Deceased estate of Elide Chism, in the sum of $114,990.35. Trinity Universal Surety Company is hereby ordered to pay the penal sum of their bond in the amount of $10,000.00 to the Jefferson County Probate Court Trust Fund.
It is therefore ORDERED, ADJUDGED, AND DECREED that upon payment of said sum to the Jefferson County Probate Court Trust Fund for Personal Representative of the Deceased estate of Elbie Chism, the said Court is directed to transfer and assign said judgment to the payor.
Decree Rendering Judgment dated January 29, 2003 (Exhibit D to Motion for Summary Judgment (Proceeding No. 14) filed on December 12, 2005, by the plaintiff) (emphasis added).
In its Response to Debtor's Motion for Judgment on the Pleadings (Proceeding No. 17), the plaintiff represented that the surety had indeed paid the amount of its bond into the probate court. The plaintiff wrote, "The Trinity Universal Surety Company has paid the bonding amount of $10,000.00. . . ." Id. at 2.
Based on the above, this Court must therefore conclude that pursuant to the probate court's decree and judgment, and the plaintiff's acknowledgment that the surety paid the $10,000 ordered by the probate court, that the judgment on which the plaintiff relies was assigned and transferred to the surety when it paid the money into court. At that moment, the judgment became the absolute property of the surety company and Mrs. Elbie Chism's estate was, consequently, divested of any interest in the judgment.
2. Legal Conclusions
Jurisdiction is a, "court's power to decide a case." Black's Law Dictionary 855 (7th ed.1999). Without jurisdiction, a Court cannot act. That is the situation here. Where a party brings an action before a court but does not have standing to bring the action, then that court would not have jurisdiction over the matter brought and therefore could not then decide that matter. This is as basic as the law can get.
Standing is a jurisdictional requirement. That is, a trial court acquires no subject-matter jurisdiction over a suit instituted by one who lacks standing and must dismiss the same. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999).
Writing for the court in Wilson v. Minor, 220 F.3d 1297 (11th Cir.2000), Circuit Judge Stanley Marcus explained:
Of course, a federal court has an independent obligation to ensure that it has jurisdiction over any claim brought before it even if jurisdictional questions are not raised by either party. See United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (noting that "[t]he question of standing is not subject to waiver. . . . `The federal courts are under an independent *844 obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines.'") (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990)) (internal quotation marks omitted); University of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir.1999) (emphasizing that "it is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking").
Id. at 1302 n. 11.
And, writing for the United States Supreme Court in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), Justice Sandra Day O'Connor explained, "The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines." Id. at 231, 110 S.Ct. 596 (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)) (emphasis added).
The focus of the standing inquiry is "whether the plaintiff is the proper party to bring this suit." Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). As the above explains, that question is not a technical one that may be ignored. As demonstrated by the result in this case, the answer to it has serious consequences.
When the judgment subject to the complaint before this Court was assigned to the surety company, Mrs. Chism's estate lost all rights in that judgment and whatever rights, that estate may have otherwise had to enforce that judgment against Mrs. Eldridge were terminated as a result of the assignment and transfer of the same to the surety. Consequently, the plaintiff has no right or authority to seek or prosecute collection of that judgment either on its own behalf or own behalf of the judgment's true owner, the surety company, by way of this adversary proceeding. Therefore the plaintiff does not have standing to bring the action now pending before this Court and the pending complaint is due to be dismissed.
The plaintiff's only response to the defendant's standing argument is to assure this Court that the surety, "will be repaid such an amount upon collection of the judgment amount from the debtor." Response to Debtor's Motion for Judgment on the Pleadings at 2. That is not what was ordered by the probate court. That court was explicit in its order, that is, if the $10,000 were paid, the judgment is assigned. Because the $10,000 was paid, the judgment was assigned.
Based on the above, the Court finds that the plaintiff did not have standing to bring the pending complaint and therefore this Court does not have jurisdiction to hear this matter. Consequently, the pending complaint is due to be dismissed.
3. The plaintiff also lacks standing because it is not the personal representative of the decedent's estate.
Even if the judgment of the probate court had not been assigned and transferred to Mrs. Eldridge's surety, based on the facts before it, this Court finds that the plaintiff still lacks the standing necessary to file or maintain the present adversary proceeding. The named plaintiff in the proceeding is "the Estate of Elbie Chism, a protected person now deceased." Under Alabama law, only the decedent's personal representative has specific statutory authority to file and prosecute lawsuits on behalf of said decedent's estate. A series of sections from the Code of Alabama help explain.
*845 Section 43-2-833(c) of the Code of Alabama reads:
Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death.
Code of Ala., 1975 § 43-2-833(c).
And section 43-2-843(18) reads, "a personal representative, acting prudently for the benefit of the interested persons, may properly: . . . (18) Prosecute or defend claims or proceedings in any jurisdiction for the protection or benefit of the estate and of the personal representative in the performance of duties of the personal representative." Code of Ala., 1975 § 43-2-843(18).
The above identify a personal representative's power to exercise the same power over property of the decedent's probate estate that an absolute owner would have. And, section 43-2-839 of the Alabama Code adds, "Until termination of the appointment, a personal representative has the same power over the title to property of the estate, subject to Sections 43-2-843 and 43-2-844, that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate." Code of Ala., 1975 § 43-2-839.
Furthermore, the personal claims of a decedent which existed prior to his or her death, if they survive at all, only survive in favor of the decedent's personal representative, and no one else. Section 6-5-462 of the Alabama Code reads, "all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives." Code of Ala., 1975 § 6-5-462.
Accordingly, "An action filed on behalf of the estate must be brought by the [decedent's personal representative]." Douglass v. Jones, 628 So.2d 940, 941 (Ala. Civ.App.1993). Therefore, no one other than the decedent's personal representative, including relatives, or heirs, or beneficiaries, or "the estate" itself, has legal standing to file or prosecute an action on behalf of the estate. Ogle v. Gordon, 706 So.2d 707, 710 (Ala.1997); Ellis v. Hilburn, 688 So.2d 236, 238 (Ala.1997); Waters v. Hipp, 600 So.2d 981, 982 (Ala.1992); Holyfield v. Moates, 565 So.2d 186, 187 (Ala. 1990); Brown v. Mounger, 541 So.2d 463, 464 (Ala.1989); Vest v. Dixie-Midwest Express, Inc., 537 So.2d 13, 14 (Ala.1988); Stone v. Jones, 530 So.2d 232, 235 (Ala. 1988); Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988); Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979), cert. denied, 445 U.S. 930, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Strickland v. Mobile Towing & Wrecking Co., Inc., 293 Ala. 348, 354, 303 So.2d 98, 103 (1974), overruled on other grounds, Ogle v. Gordon, 706 So.2d 707, 710 (Ala. 1997); Douglass v. Jones, 628 So.2d 940, 941 (Ala.Civ.App.1993).
Moreover, under Alabama law, a decedent's estate is defined as, "the property of the decedent whose affairs are subject to this chapter as originally constituted and as it exists from time to time during administration." Code of Ala., 1975 § 43-8-1(8). "Property," of course, is inanimate, and therefore lacks the ability to do anything other than exist, much less file a lawsuit, or engage a lawyer to do so, or perform any other of the myriad of tasks involved in prosecuting a lawsuit. Hence the necessity for a personal representative.
Nothing in this plaintiff's complaint suggests that a proceeding was filed for the administration of Mrs. Chism's probate estate or to probate her will. Because *846 a probate "estate" does not come into existence until a proceeding to administer the same is filed in the appropriate probate court, it has no legal existence, and no lawsuit can be filed on its behalf by the decedent's personal representative. Jones v. Blanton, 644 So.2d 882, 887 (Ala. 1994).
As the above statutes and cases illustrate, Mrs. Chism's duly appointed personal representative is the only person who would have had standing to file and prosecute the present adversary proceeding even if the probate court's judgment had not been transferred and assigned to Mrs. Eldridge's surety. And as discussed before, standing is a jurisdictional requirement. This Court cannot acquire subject-matter jurisdiction over a suit filed by one who lacks standing and therefore such a suit is due to be dismissed. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999).
Consequently, this Court finds that even if the probate court's judgment had not been transferred and assigned to Mrs. Eldridge's surety, dismissal of this proceeding would still be required because it was not filed by the decedent's personal representative.
This finding however raises an additional issue. As some of the above-cited cases demonstrate, where an action is brought by someone who is not a personal representative, when someone else, or the original person or entity, becomes the duly appointed personal representative, the representative may want to file an action or amend the pending action. That situation is frequently confronted by the fact that a statute of limitations may have passed before the personal representative was appointed. That could be the situation here.
The deadline for filing complaints to determine the dischargeability of particular debts in Mrs. Eldridge's bankruptcy case passed on August 22, 2005. Assuming arguendo that the probate court's judgment had not been assigned to Mrs. Eldridge's surety, the next question would be whether or not, and under what circumstances, the plaintiff might be able to amend its complaint pursuant to Rule 17(a) of the Federal Rules of Civil Procedure, applicable to this adversary proceeding through Rule 7017 of the Federal Rules of Bankruptcy Procedure, to substitute the decedent's duly appointed personal representative, if any, as the proper party plaintiff and thereby avoid dismissal.[14]
But to what would such an amendment relate? The filing of a complaint, such as the one here, by someone without standing is considered a nullity and it will not support the relation back of an amendment to the same substituting or adding as plaintiff one who has standing in the event the applicable statute of limitations has run. The court in State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999), explains, "In other words, a pleading purporting to amend a complaint, which complaint was filed by a party without standing, cannot relate back to the filing of the original complaint, because there is nothing `back' to which to relate." Id. at 1028.
Therefore, if no proceeding for the administration of the Mrs. Chism's estate was pending in the probate court when the deadline for filing nondischargeability complaints passed, or, if no application for the appointment of a personal representative, as that term is defined section 43-8-1(24) of the Code of Alabama, was pending on *847 that date, an amendment to the complaint to substitute any personal representative which may have been appointed by the probate court to administer Mrs. Chism's estate subsequent to the passage of that deadline, would be impermissible. Brown v. Mounger, 541 So.2d 463, 464 (Ala.1989); Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979), cert. denied, 445 U.S. 930, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Strickland v. Mobile Towing & Wrecking Co., Inc., 293 Ala. 348, 354, 303 So.2d 98, 103 (1974), overruled on other grounds, Ogle v. Gordon, 706 So.2d 707, 710 (Ala.1997).
But, if a proceeding for the administration of Mrs. Chism's estate was pending in the probate court when the deadline passed, and a personal representative was appointed by the probate court before the passage of that deadline, an amendment to the complaint to substitute the personal representative as the proper party plaintiff might relate back to the date when the complaint was filed. Ellis v. Hilburn, 688 So.2d 236, 238 (Ala.1997); Holyfield v. Moates, 565 So.2d 186, 187 (Ala.1990). Furthermore, such an amendment might relate back in the limited circumstance where an application for the appointment of a personal representative was pending in the probate court when the deadline passed, even if the appointment was not actually made until after the passage of the deadline. Ogle v. Gordon, 706 So.2d 707, 710 (Ala.1997).
But, as discussed above, in either event, this plaintiff lacked standing to prosecute the present proceeding because the judgment which it now seeks to have declared nondischargeable was assigned and transferred by the probate court to Mrs. Eldridge's surety. Consequently, any question as to whether or not the plaintiff would otherwise have to be allowed the opportunity to amend its complaint pursuant to Rule 17(a) to substitute the decedent's duly appointed personal representative as the proper party plaintiff is purely academic.
VI. Conclusion
Based on the foregoing, the Court finds that the plaintiff did not have, and does not have standing to bring the pending action. Because the plaintiff does not have standing, this Court does not have jurisdiction to hear the pending action. Therefore the pending action is due to be dismissed.
A separate order will be entered in conformity with this memorandum opinion.
NOTES
[1] The plaintiff contends that the debtor committed fraud or defalcation while acting in a fiduciary capacity and as such the debt it contends it is owed by the debtor would be nondischargeable pursuant to section 523(a)(4) of the Bankruptcy Code. Section 523(a)(4) reads, "A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. . . ." 11 U.S.C. § 523(a)(4). While the complaint purports to be grounded in 11 U.S.C. § 523(a)(2)(A) and (B), the factual allegations contained in the complaint describe a 523(a)(4) cause of action and otherwise describe no basis for granting relief pursuant to either section 523(a)(2)(A) or (B).
In addition, the plaintiff's motion for summary judgment is based on section 523(a)(4). It discusses the "facts" alleged in the complaint and sought to be proved by the affidavits and documents filed in support of the motion in light of section 523(a)(4), and contains no reference to either section 523(a)(2)(A) or (B). In addition, at the two hearings conducted in this matter, counsel for the plaintiff has couched and discussed the issues, contentions and allegations in light of section 523(a)(4), and has mentioned neither section 523(a)(2)(A) or (B).
The Court must conclude that the plaintiff is actually requesting no relief based on either section 523(a)(2)(A) or (B), but instead is seeking relief pursuant to section 523(a)(4), which makes nondischargeable "a debt . . . for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." 11 U.S.C. § 523(a)(4). But in either event, all issues may be resolved without considering this question in detail.
[2] Summary judgment is defined as, "A judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law." Black's Law Dictionary 1449 (7th ed.1999).
Collateral estoppel is defined as, "An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one." Black's Law Dictionary 256 (7th ed.1999).
[3] A "judgment on the pleadings" is defined as, "A judgment based solely on the allegations and information contained in the pleadings, and not on any outside matters." Black's Law Dictionary 848 (7th ed.1999).
[4] "Standing" is defined as, "A party's right to make a legal claim or seek judicial enforcement of a duty or right." Black's Law Dictionary 1413 (7th ed.1999).
[5] See CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257 (11th Cir.2006), Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir.2005), and Florida Public Interest Research Group Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070 (11th Cir.2004).
[6] Order Appointing Guardian and Conservator Upon Filing Bond dated November 12, 1996 (Exhibit D to Response to Motion for Summary Judgment (Proceeding No. 18) filed on December 30, 2005, by the defendant).
[7] Affidavit of Brenda Eldridge (Exhibit A to Response to Motion for Summary Judgment (Proceeding No. 18) filed on December 30, 2005, by the defendant).
[8] Inventory dated November 18, 1996 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)).
[9] Order Allowing Conservator to Use a Part of the Ward's Estate for Support dated February 18, 1997 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)).
[10] Petition to Sell Property of Ward for Reinvestment dated December 11, 1996, and order granting it stamped on the same dated February 18, 1997 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)).
[11] Order on Motion to Be Relieved of Bond dated September 13, 2001 (Exhibit G to Response to Motion for Summary Judgment (Proceeding No. 18) filed on December 30, 2005, by the defendant).
[12] Decree Ordering Bonding Company to File Final Settlement dated May 9, 2002 (Exhibits submitted by plaintiff in support of its motion for summary judgment on February 8, 2006 (Proceeding No. 24)).
[13] Affidavit of Darlene Wilson; Affidavit of Patricia Semancheck; and Affidavit of Joyce Perkins (Exhibits A, B, and C to Motion for Summary Judgment (Proceeding No. 14) filed on December 12, 2005, by the plaintiff).
[14] Rule 17(a) reads, "Every action shall be prosecuted in the name of the real party in interest." Fed. R. Civ. P 17(a).
| {
"pile_set_name": "FreeLaw"
} |
537 U.S. 828
BERRYv.MISSISSIPPI.
No. 01-9509.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI.
2
Sup. Ct. Miss. Certiorari denied. Reported below: 802 So. 2d 1033.
| {
"pile_set_name": "FreeLaw"
} |
299 B.R. 481 (2003)
In re COMMUNICATION OPTIONS, INC. Debtor.
No. 00-57772.
United States Bankruptcy Court, S.D. Ohio, Eastern Division.
September 29, 2003.
Richard T. Ricketts, Ricketts Co., L.P.A., Columbus, OH, for Debtor.
Leon Friedberg, Stephanie Champ, Carlile Patchen & Murphy LLP, Columbus, OH, for Duckworth Enterprises, LLC.
ORDER GRANTING DUCKWORTH'S MOTION FOR APPOINTMENT OF RESPONSIBLE PARTY
BARBARA J. SELLERS, Bankruptcy Judge.
Duckworth Enterprises, LLC ("Duckworth") has moved the Court to appoint a "responsible officer" to operate the debtor's business or, in the alternative, to appoint *482 a trustee. The debtor opposed the motion and the Court heard the matter.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding which this bankruptcy judge may hear and determine under 28 U.S.C. § 157(b)(2)(A).
A review of existing case law reveals that the appointment of a responsible person has been used primarily to replace non-existent management or with the agreement of the parties. See, e.g., Matter of FSC Corp., 38 B.R. 346 (Bankr.W.D.Pa.1983); Matter of Gaslight Club, Inc., 782 F.2d 767 (7th Cir.1986). Neither of those circumstances are present in this case. However, this Court believes it has inherent and express equity powers to take appropriate action necessary to protect a reorganizing debtor's potential for reorganization and the integrity of the bankruptcy system. See 11 U.S.C. § 105. Sometimes such equitable remedies require unusual actions.
During the extensive hearings on this and other motions recently tried, the Court heard numerous examples of actions taken by the debtor solely to protect its insiders. Were this case at any earlier phase, the Court would not hesitate to order the appointment of a trustee. However, this case has been pending for three years, and two reorganization plans are now pending. Appointment of a trustee at this point would merely delay the process and incur expense that this estate cannot afford. At the same time, the Court has an obligation to protect the reorganization process and the rights of parties in interest. That protection can best be achieved here by terminating the non-productive delay tactics the debtor is using to avoid paying its creditors and ordering the appointment of a responsible person to act on behalf of the debtor in possession.
Duckworth has nominated Beth Fisher as a potential appointee as a responsible party under its motion. Ms. Fisher testified as to her experience, credentials, availability, and willingness to serve under what will be a relatively short tenure, at a fair and reasonable salary. The Court is satisfied that she is competent, disinterested, and an appropriate person to serve as a responsible party for, and representative of, the debtor in possession.
Accordingly, the Court GRANTS the motion of Duckworth Enterprises for the appointment of a responsible party to act for the debtor and debtor in possession. The Court further finds that Beth Fisher, as an available and competent suggested responsible party, shall be so designated upon her filing of a statement of willingness to serve in such capacity. It is intended that this appointment be short in duration, until there is either a confirmed plan or the case has been converted to Chapter 7.
IT IS SO ORDERED.
| {
"pile_set_name": "FreeLaw"
} |
273 Wis. 522 (1956)
WILSON, Plaintiff in error,
vs.
THE STATE, Defendant in error.
Supreme Court of Wisconsin.
September 14, 1956.
October 9, 1956.
*526 For the plaintiff in error there was a brief by Robert J. Beaudry, attorney, and William B. Rubin of counsel, both of Milwaukee, and oral argument by Mr. Rubin and Mr. Beaudry.
For the defendant in error there was a brief by the Attorney General and William A. Platz, assistant attorney general, and William J. McCauley, district attorney of Milwaukee county, and Hugh R. O'Connell, special assistant district attorney, and oral argument by Mr. O'Connell and Mr. Platz.
*527 BROWN, J.
Sec. 958.07, Stats. (new number), provides that the writ of error coram nobis may be issued under certain circumstances. It is a writ of long standing. The leading Wisconsin cases concerning it are In re Ernst (1923), 179 Wis. 646, 192 N. W. 65, and State v. Dingman (1941), 239 Wis. 188, 300 N. W. 244. These cases and the texts make it clear that this writ is highly discretionary and the determination of the court to which the application was made will not be reversed unless it very clearly appears that discretion was abused. The writ will not lie if an appeal may be taken to correct the errors alleged by the petitioner. The writ may be granted when facts not of record are produced, by affidavit or testimony, which were not known to the trial court at the time it entered judgment and which if known would have prevented the entry of the judgment complained of.
Neither the petition nor the argument of counsel brought to the court any new facts whatever. They simply review those portions of the record in which they contend the trial court committed error. If the objections are well taken, these matters were properly reviewable in an appeal from the judgment. No foundation has been laid upon which the writ of error coram nobis could be granted and, accordingly, the denial of the writ was not an abuse of the discretion of the trial court. Its order denying the petition for a writ of error coram nobis is affirmed.
In support of the motion for a new trial the plaintiff in error submits that he was convicted without due process of law, particularly in that the finding respecting his sanity at the time his case was heard was based upon obsolete and incompetent opinions, the plea of insanity at the time of the commission of the offense was never tried nor heard, that no competent evidence was had that Mrs. Wilson was alive at the time of the alleged killing and that the plea of guilty was involuntary.
*528 The medical experts who pronounced Wilson sane at the time of hearing testified, among other things, that he could distinguish between right and wrong and knew the nature and quality of his acts. This is the time-honored "McNaghten rule" for the determination of sanity. In this state we have defined legal insanity as "`such a perverted condition of the mental and moral faculties as to render the person incapable of distinguishing between right and wrong.'" Oehler v. State (1930), 202 Wis. 530, 535, 232 N. W. 866, citing Jessner v. State (1930), 202 Wis. 184, 231 N. W. 634. Sec. 357.13 (1), Stats. (now sec. 957.13 (1)), provides:
"If the court is reliably advised before or at his trial or after conviction and before commitment that the defendant is probably insane or feeble-minded, the court shall in a summary manner make inquiry thereof."
Sub. (2) thereof provides:
"If the court finds that the defendant is insane or feebleminded, his trial or sentence or commitment shall be postponed indefinitely. . . ."
Counsel for the defendant submit that the McNaghten rule is obsolete and call upon us to adopt some other, unspecified, test. The state contends that the defendant's appreciation of the distinction between right and wrong is immaterial at this stage of proceedings and what is really important is his capacity to confer with his counsel and assist in his own defense. We agree with the state that trial should be indefinitely postponed if the defendant's mental condition renders him incapable of conferring with his attorneys in his own behalf but do not adopt the theory that defendant's ability to distinguish between right and wrong at the time of trial is immaterial as long as that ability remains a test of his sanity. The statute, sec. 957.13, applicable at that time when his mental state is reliably questioned, directs inquiry be made as to sanity and provides measures to be taken if *529 insanity is found. It was obligatory, therefore, for the court to inform itself concerning Wilson's sanity at the time of hearing. The court proceeded to do so and we find no error in using, in the investigation, the test of insanity recognized and approved in this jurisdiction at least since Oehler v. State, supra, especially as the legislature in the interval has not provided a different test or definition. By the testimony of the alienists the trial court was informed that Wilson was presently sane, as that term is understood in the law, and that he was mentally capable of acting in his own behalf in consultation with his attorney. Under the circumstances the court could hardly have resolved the question of Wilson's mental state other than it did and nothing in the entire record even suggests that the defendant lacked adequate mental capacity at any time during the several hearings. We find no error in this respect.
Plaintiff in error now submits that his plea of guilty was involuntary. The record completely refutes this contention. The portions of it already quoted dealing with his application to withdraw his original pleas indicate how little merit there is in the contention that his plea of guilty was involuntary or produced by coercion of any nature. He also complains that the question of his sanity at the time of the offense was never tried. Of course it was not. He withdrew the plea which raised that issue and by the substituted plea of guilty, which, as we have said, was voluntary, made by a competent person with advice of counsel, he conceded his responsibility. His plea likewise concedes that it was he who brought about his wife's death, although he submits now that there is no competent evidence that he did so. The evidence was ample. In his statement to the district attorney, introduced in evidence after judgment but before sentence, Wilson expressly and in great detail admitted the fact that he struck his living wife with his cleaver and then cut her up with the other tools of his trade; and in reply to the trial judge's direct question *530 he replied: "All right. I killed her." We find no merit in his present suggestion that she died from natural causes.
Counsel submit that the attorney who represented Wilson originally was inexperienced and incompetent, wherefore the defendant did not receive justice. The attorney in question has been an active and respected member of the bar of this court since the year 1905. The record does not support the assertion that Wilson's rights were in any way prejudiced by his choice of counsel. Our own labor to make sure that plaintiff in error received complete protection under due process of the laws has been unnecessarily increased by the present attorneys' failure to supply an appendix in the form and content required by the rules of this court. We trust that these omissions will not be cited to us later as a measure of the capacity of current counsel.
We conclude that plaintiff in error's motion for a new trial was properly denied.
By the Court.Orders and judgment affirmed.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4629
HENRY FRAZIER STEVENSON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-97-43-A)
Submitted: March 31, 1999
Decided: May 24, 1999
Before HAMILTON and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Dennis E. Jones, Angela D. Childress, DENNIS E. JONES & ASSO-
CIATES, P.C., Lebanon, Virginia, for Appellant. Robert P. Crouch,
Jr., United States Attorney, Rick A. Mountcastle, Assistant United
States Attorney, Ruth E. Plagenhoef, Assistant United States Attor-
ney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Henry Frazier Stevenson, Jr., pled guilty to distributing approxi-
mately 1.74 grams of cocaine, in violation of 21 U.S.C. § 841(a)
(1994). Relying on two prior bank robbery convictions, the district
court sentenced Stevenson as a career offender to 151 months in
prison. Stevenson appeals, challenging the use of his prior bank rob-
bery convictions to classify him as a career offender and challenging
the district court's failure to make a downward departure. We affirm
in part and dismiss in part.
Contrary to Stevenson's claims, his conviction for robbing a bank
in Virginia constitutes a crime of violence under U.S. Sentencing
Guidelines Manual § 4B1.2 (1997). Stevenson's conviction was for
bank robbery (18 U.S.C.A. § 2113(a) (West 1984 & Supp. 1999)) and
using a firearm in the commission of a felony (18 U.S.C.A.
§ 924(c)(1) (West 1976 & Supp. 1999)). The Advisory Notes specifi-
cally state that robbery is considered a crime of violence for purposes
of § 4B1.2. See U.S.S.G. § 4B1.2 comment. (n.1). Even if it was
appropriate to look beyond the fact of Stevenson's prior conviction to
the circumstances of his case, see United States v. Kirksey, 138 F.3d
120, 124 (4th Cir.), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3232
(U.S. Oct. 5, 1998) (No. 97-9400), under the facts as presented by
Stevenson himself, the bank robbery qualified as a crime of violence.
See United States v. Russell, 917 F.2d 512, 517 (11th Cir. 1990).
Stevenson claims that his prior bank robbery convictions occurred
too long before his current offense to be counted toward classifying
him as a career offender. In order to count as a prior felony conviction
for purposes of career offender status, the sentence for that conviction
must exceed one year and one month, and must have resulted in the
defendant being incarcerated for a period of time within the fifteen
years preceding the commencement of the instant offense. See
2
U.S.S.G. §§ 4A1.2(e)(1); 4B1.2(c). Counting the date Stevenson com-
mitted his crime of conviction as the date of commencement, see
United States v. Kennedy, 32 F.3d 876, 890-91 (4th Cir. 1994), we
find that both of his previous bank robberies constitute prior felony
convictions for purposes of career offender status because he served
a portion of his prison term for those convictions within the fifteen
years preceding the commencement of his current offense.
Finally, Stevenson argues that the district court erred by failing to
make a downward departure from career offender status under
U.S.S.G. § 4A1.3, p.s. Absent circumstances not present here, a deci-
sion not to depart is not reviewable. See United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992); United States v. Bayerle, 898 F.2d 28,
31 (4th Cir. 1990).
For these reasons, we affirm Stevenson's conviction. We dismiss
the portion of the appeal challenging the district court's failure to
make a downward departure. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED IN PART, DISMISSED IN PART
3
| {
"pile_set_name": "FreeLaw"
} |
405 S.W.2d 330 (1966)
The CITY OF TYLER et al., Plaintiffs in Error,
v.
ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS et al., Defendants in Error.
No. A-11260.
Supreme Court of Texas.
July 20, 1966.
Troy Smith, Tyler, for plaintiffs.
Roy P. Cosper and Clyde W. Fiddes, Ramey, Brelsford, Flock & Devereux, Tyler, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Dallas, for defendants.
*331 CALVERT, Chief Justice.
This is an original proceeding in this Court in the form of a motion to vacate, modify or suspend a judgment entered in 1906 in City of Tyler v. St. Louis Southwestern Ry. Co. of Texas, 99 Tex. 491, 91 S.W. 1. The proceeding is dismissed for want of jurisdiction.
In 1902 the City of Tyler and three of its residents, Johanah Pabst, W. H. Cousins and Sue Cousins, instituted a suit in the District Court of Smith County, Texas, in which they sought to enjoin St. Louis Southwestern Railway Company of Texas, movant here, from removing its general offices, machine shops and roundhouses from the City of Tyler. The trial court issued a temporary writ of injunction; but after a trial on the merits, the Court dissolved the temporary injunction and denied all relief sought. The judgment provided, however, that the temporary injunction should remain in force pending an appeal upon the filing by the plaintiffs of a proper supersedeas bond. The bond was filed.
The Court of Civil Appeals affirmed the judgment of the trial court. 87 S.W. 238 (1905). This Court reversed the judgments of the Court of Civil Appeals and trial court and proceeded to render the judgment which the trial court should have rendered, and decreed:
"* * * it is ordered adjudged and decreed that the plaintiffs in error * * recover Judgment against defendant in error, the St. Louis Southwestern Railway Company of Texas, that said St. Louis Southwestern Railway Company of Texas, Shall Keep and maintain in said City of Tyler * * * its general offices, and shall Keep and maintain in said City its machine shops and it is further ordered, adjudged and decreed that the injunction heretofore granted on to wit; April 20th 1902, by the Judge of the District Court of Smith County, Texas * * * is hereby perpetuated * * *."
On July 12, 1965, the City of Tyler filed its petition in the District Court of the 7th Judicial District, Smith County, in which it alleged that St. Louis Southwestern Railway Company of Texas was moving its general offices and machine shops from Tyler in violation of the court's judgment. The City prayed for a cease and desist order and for an order to show cause why the Railway Company and its officers and agents should not be held in contempt for violating the injunction perpetuated by the judgment of this Court. The Railway Company removed the suit to the United States District Court for the Eastern District of Texas, Tyler division, and filed a separate suit in that Court in which the principal relief sought was (1) a declaratory judgment that the judgment of 1906 was void and unenforceable, and (2) enjoining further prosecution of the contempt proceedings in the state district court. The United States District Court remanded the contempt action to the state district court and dismissed the separate suit for declaratory and injunctive relief. Railway Company then filed the instant proceeding in this Court.
Railway Company seeks to vacate, modify or suspend the judgment of 1906 on the ground that the Congress of the United States by enactment of the Transportation Act of 1920 and subsequent amendments, pre-empted the subject matter of the judgment and vested exclusive jurisdiction to regulate the subject matter thereof in the Interstate Commerce Commission, which jurisdiction the Interstate Commerce Commission has exercised by an order entered in 1953 expressly relieving Railway Company of any obligation under the laws of Texas, "contractual, statutory or other," to maintain machine shops or other facilities at any particular place or places, and authorizing location changes of such facilities as in the judgment of the Board of Directors would enable Railway Company to operate the properties in the public interest with the greatest economy and efficiency.
*332 The first question presented is whether this Court has jurisdiction to grant the relief sought. Before the relief sought can be granted, a preliminary determination must be made that changed conditions require or authorize vacation, modification or suspension of the 1906 judgment. The question to be decided, then, is this: Does the Supreme Court have jurisdiction to determine in the first instance whether a judgment rendered and entered by it as a court of review has become void or unenforceable because of changed conditions? We hold that it does not; that jurisdiction so to determine lies with the trial court in which the case was pending when final judgment was entered.
The Supreme Court is primarily a court of appellate review, with its powers of review limited to questions of law. Sec. 3, Art. 5, Constitution of Texas, Vernon's Ann.St.; City of Dallas v. Dixon, Tex.Sup., 365 S.W.2d 919, 923 (1963); Morrow v. Corbin, 122 Tex. 553, 62 S. W.2d 641, 645-646 (1933). Other than with respect to some particular matters not relevant to this discussion, the Court's jurisdiction to act beyond the scope of appellate review is granted and limited by Sec. 3, Art. 5, supra, to the issuance of writs of habeas corpus "as may be prescribed by law, and under such regulations as may be prescribed by law;" the issuance of such writs "as may be necessary to enforce its jurisdiction;" the issuance of "writs of quo warranto and mandamus" in such cases as may be specified by the Legislature; and the ascertainment of "such matters of fact as may be necessary to the proper exercise of its jurisdiction." Jurisdiction to vacate or modify its prior judgments not being expressly conferred on this Court, it must exist, if at all, by implication.
When the Supreme Court directs the issuance of a writ as an original proposition to preserve or enforce its jurisdiction, there can be no doubt of its jurisdictional power to vacate or modify the judgment which directed its issuance; having entered the judgment in the exercise of its original jurisdiction, it necessarily has the power to vacate or to modify it. It does not follow, however, that it may vacate or modify a judgment it has rendered and entered as a court of review after the judgment has become final.
When as a court of review this Court affirms a judgment of a trial court or enters a judgment which a trial court should have entered, the judgment becomes a judgment of both courtsthe trial court and this Court. Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 96 (1940); Houston Oil Co. of Texas v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087, 1089 (1934). In that situation and in the absence of changed conditions it is the duty of the trial court to enforce the judgment as entered; and, if necessary, this Court can compel its enforcement. Gulf, Colorado & Santa Fe Ry. Co. v. City of Beaumont, Tex.Sup., 373 S.W.2d 741 (1964); Conley v. Anderson, Tex.Sup., 164 S.W. 985 (1913); Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224 (1912). But jurisdiction of this Court to compel enforcement of the judgment does not include jurisdictional power to vacate or modify the judgment because of changed conditions; that power lies alone with the trial court which can subpoena witnesses, take evidence and make findings of fact from a preponderance of the evidence. While this question has not heretofore been decided, we have no doubt of the correctness of our holding. Any other holding would bring the jurisdiction of this Court and of trial courts into conflict in violation of the rule of construction announced in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933), as follows:
"We should, of course, interpret and construe the various sections of the Constitution defining the jurisdiction of our several courts in such manner as to harmonize them, to the end that each court, whether trial or appellate, shall be *333 permitted to exercise the power conferred upon it without conflict with the authority confided to another tribunal."
Trial courts undoubtedly have jurisdiction to modify or vacate their judgments granting permanent injunctions because of changed conditions. See 68 A.L.R. 1180; 136 A.L.R. 765; Carleton v. Dierks, Tex. Civ.App., 203 S.W.2d 552, 557 (1947); writ ref., n. r. e.; Uvalde Paving Co. v. Kennedy, Tex.Civ.App., 22 S.W.2d 1091, 1092 (1929), no writ hist. Their judgments doing so or refusing to do so are, of course, reviewable on appeal; but their original jurisdiction to make the decision is exclusive.
The motion is dismissed.
| {
"pile_set_name": "FreeLaw"
} |
Filed 9/23/16 P. v. Isaia CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G051739
v. (Super. Ct. No. 14NF1892)
SIERRA ISAIA, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
Thomas A. Glazier, Judge. Affirmed in part, reversed in part, and remanded for
resentencing.
Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
I.
Introduction
Sierra Isaia appeals from the order granting, in part, his petition under Penal
Code section 1170.18 (section 1170.18) for a recall of sentence and resentencing. The
trial court granted the petition, reduced a prior felony conviction for possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) to a misdemeanor, and
resentenced Isaia. The court declined, however, to grant Isaia’s request to dismiss a prior
felony conviction enhancement allegation that was based on a felony conviction that had
been designated as a misdemeanor under section 1170.18.
We conclude that designation of an earlier felony conviction as a
misdemeanor pursuant to section 1170.18 means that conviction no longer qualifies as
the basis for imposition of a prior prison enhancement allegation under Penal Code
section 667.5, subdivision (b) (section 667.5(b)). The trial court therefore should have
granted Isaia’s request to strike the prior felony conviction enhancement allegation that
was based on the felony conviction that had been designated as a misdemeanor. We
therefore reverse in part and remand for resentencing.
II.
Background
Isaia was charged by information with three counts: count 1—felony
possession of ammunition by a prohibited person in violation of Penal Code section
30305, subdivision (a)(1); count 2—felony possession of a controlled substance in
violation of Health and Safety Code section 11377, subdivision (a); and count 3—
misdemeanor possession of controlled substance paraphernalia in violation of Health and
Safety Code section 11364.1, subdivision (a). The information alleged four prior felony
conviction/separate prison term enhancements pursuant to section 667.5(b) (prior felony
2
conviction allegations). Relevant here is the allegation that Isaia was convicted in April
2012 of buying or receiving stolen property in violation of Penal Code section 496,
subdivision (a) and, for that offense, served a separate prison term of one year or more.
In October 2014, Isaia pleaded guilty to all three counts and admitted the
prior felony conviction allegations. The court imposed a three-year sentence on count 1,
a concurrent three-year sentence on count 2, a concurrent six-month sentence on count 3,
and a one-year sentence on three of the four prior felony conviction allegations (including
the buying or receiving stolen property conviction). The court struck for sentencing
purposes the fourth prior felony conviction allegation. The trial court suspended
execution of a portion of the sentence to that Isaia received a “[d]ivided sentence” under
Penal Code section 1170, subdivision (h)(5) of two years in county jail followed by
mandatory supervision for four years. He received 168 actual days of credit and 168
conduct days of credit for a total of 336 days of credit for time served.
In December 2014, Isaia filed a petition for a recall of sentence and
resentencing on count 2 pursuant to section 1170.18, subdivision (a). The People did not
oppose the petition but requested a hearing regarding resentencing.
At a hearing in March 2015, the trial court granted Isaia’s petition for a
recall of sentence and resentencing on count 2. At the same hearing, the court granted
Isaia’s petition to have his prior felony conviction for buying or receiving stolen property
designated a misdemeanor. Isaia asked the trial court to dismiss the prior felony
conviction allegation based on the buying or receiving stolen property conviction now
designated a misdemeanor. The court denied the request. Isaia filed a notice of appeal to
challenge that denial.
3
III.
Discussion
A. Issue
The issue presented is whether a felony conviction that is designated a
misdemeanor under section 1170.18 continues to qualify as the basis for a prior felony
conviction/separate prison sentence enhancement allegation under section 667.5(b). We
conclude it does not.
B. Background Law and Standard of Statutory Interpretation
“‘On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act . . . .’ [Citation.] ‘Proposition 47 makes certain drug-
and theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. These offenses had previously been designated as either felonies
or wobblers (crimes that can be punished as either felonies or misdemeanors).’
[Citation.]” (People v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47 added
section 1170.18. (People v. Morales, supra, at p. 404.)
Under section 1170.18, subdivision (a), “[a] person currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing.” Under section 1170.18, subdivision (f), “[a] person who has completed
his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court that entered the
4
judgment of conviction in his or her case to have the felony conviction or convictions
designated as misdemeanors.”
Section 1170.18, subdivision (k)—enacted as part of Proposition 47—
states: “Any felony conviction that is recalled and resentenced under subdivision (b) or
designated as a misdemeanor under subdivision (g) [of section 1170.18] shall be
considered a misdemeanor for all purposes, except that such resentencing shall not permit
that person to own, possess, or have in his or her custody or control any firearm or
prevent his or her conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6.”
We independently review issues of statutory construction. (Smith v.
Superior Court (2006) 39 Cal.4th 77, 83.) The fundamental task of statutory
interpretation is to ascertain the Legislature’s intent to effectuate the statute’s purpose.
(Ibid.) We do so first by considering the language of the statute itself, giving the words
used their ordinary meaning. (Ibid.) If the statutory language is unambiguous, the plain
meaning controls and consideration of extrinsic sources to determine the Legislature’s
intent is unnecessary. (Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal.4th 911, 919.) We read the statute as a whole to harmonize and give effect
to all parts. (Ste. Marie v. Riverside County Regional Park & Open-Space Dist. (2009)
46 Cal.4th 282, 289.)
C. A Felony Designated as a Misdemeanor Under
Section 1170.18 Cannot Serve as the Basis for a
Prior Felony Conviction Enhancement Allegation.
Section 1170.18, subdivision (k) plainly states that a felony conviction
designated as a misdemeanor under section 1170.18, subdivision (g) shall be considered a
misdemeanor for all purposes, except for purposes of owning or possessing a firearm.
The term “all purposes” would include the purpose of serving as the basis of a prior
felony conviction enhancement allegation under section 667.5(b).
5
The recent case of People v. Abdallah (2016) 246 Cal.App.4th 736
(Abdallah), which involved a similar direct attack on an enhancement, holds that the
reduction of a prior felony to a misdemeanor pursuant to section 1170.18 precludes the
trial court from using it as the basis for imposing an enhancement under section 667.5(b).
We agree with the analysis of Abdallah, and conclude it supports the same result here.
In Abdallah, supra, 246 Cal.App.4th at page 742, the Court of Appeal
explained that the California Supreme Court has set forth the elements required to qualify
for the prior prison term enhancement: “Imposition of a sentence enhancement under
Penal Code section 667.5[(b)] requires proof that the defendant: (1) was previously
convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed
that term of imprisonment; and (4) did not remain free for five years of both prison
custody and the commission of a new offense resulting in a felony conviction.” (People
v. Tenner (1993) 6 Cal.4th 559, 563.) As the Abdallah court concluded, the first of those
required elements is eliminated when the defendant’s prior conviction is designated as a
misdemeanor. (Abdallah, supra, at p. 746.) In reaching that conclusion, the Abdallah
court relied largely on People v. Park (2013) 56 Cal.4th 782, in which the Supreme Court
considered whether a court order reducing a wobbler to a misdemeanor precluded its later
use as the basis for a felony sentence enhancement. The Supreme Court held it did
because “when the court in the prior proceeding properly exercised its discretion by
reducing the [felony] conviction to a misdemeanor, that offense no longer qualified as a
prior serious felony within the meaning of section 667, subdivision (a), and could not be
used, under that provision, to enhance defendant’s sentence.” (People v. Park, supra, at
p. 787.)
In People v. Flores (1979) 92 Cal.App.3d 461 (Flores), the Court of Appeal
reached a similar conclusion in a situation in which legislation, rather than a court order,
designated the defendant’s earlier felony as a misdemeanor. The Flores court concluded
it was improper to rely on a defendant’s prior felony conviction for possession of
6
marijuana as the basis for a felony enhancement, once the Legislature had reduced the
crime of possession to a misdemeanor. (Id. at pp. 470-471.) In reaching that conclusion,
the Flores court relied on In re Estrada (1965) 63 Cal.2d 740 (Estrada), for the
proposition that “[w]hen the Legislature amends a statute so as to lessen the punishment
it has obviously expressly determined that its former penalty was too severe and that a
lighter punishment is proper as punishment for the commission of the prohibited act. It is
an inevitable inference that the Legislature must have intended that the new statute
imposing the new lighter penalty now deemed to be sufficient should apply to every case
to which it constitutionally could apply.” (Estrada, supra, at p. 745.)
Although the marijuana legislation under consideration in Flores did not
expressly provide for the reduction of prior felony convictions to misdemeanor status, the
court concluded that the legislation’s clear language (including a requirement that all
records pertaining to such convictions be destroyed) demonstrated it was “intended to
prohibit the use of the specified records for the purpose of imposing any collateral
sanctions.” (Flores, supra, 92 Cal.App.3d at p. 472.) Thus, under Flores and People v.
Park, when a felony is reduced to or designated a misdemeanor, whether by legislation or
court order, it cannot be used to support a felony sentence enhancement.
D. Isaia’s Prior Conviction for Buying or Receiving Stolen
Property Could Not Serve as the Basis for
a Prior Felony Conviction.
There is a difference in timing between this case and Abdallah. In
Abdallah, the trial court had sentenced the defendant to the prison prior enhancement just
after it had reduced the relevant underlying felony to a misdemeanor. (Abdallah, supra,
246 Cal.App.4th at p. 740.) Thus, the enhancement was erroneous at the moment it was
imposed. In this case, by contrast, at the time Isaia was originally sentenced, his prior
felony conviction for buying or receiving stolen property had not yet been reduced to a
misdemeanor. Thus, unlike the trial court in Abdallah, the trial court in this case did not
7
err at the time of original sentencing because at that time the conviction for buying or
receiving stolen property was a felony.
That distinction does not make a difference. In Estrada, supra, 63 Cal.2d
740, the California Supreme Court held that legislatively mandated sentence reductions
must be applied in all cases where the judgment is not final. “The holding in Estrada was
founded on the premise that ‘“[a] legislative mitigation of the penalty for a particular
crime represents a legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law.”’” (People v. Brown (2012) 54
Cal.4th 314, 325.) The imposition of a sentence enhancement based on the felony status
of a prior crime falls within this rule.
Citing People v. Rivera (2015) 233 Cal.App.4th 1085 (Rivera), the
Attorney General argues section 1170.18, subdivision (k) “does not apply retroactively to
invalidate prior prison enhancements.” In that case, the Court of Appeal considered
whether the reduction of the defendant’s felony conviction to a misdemeanor under
Proposition 47, before the defendant’s appeal from the conviction was heard, would
affect appellate jurisdiction. (Rivera, supra, at p. 1100.) The Court of Appeal concluded
it did not because, under California Rules of Court, rule 8.304(a)(1), the Court of Appeal
had jurisdiction over a judgment or appealable order of the superior court in a “felony
case” and, under rule 8.304(a)(2), a felony case “means any criminal action in which a
felony is charged, regardless of the outcome.” (Rivera, supra, at p. 1095.)
In Rivera, the Court of Appeal reasoned that nothing in the text of
Proposition 47 or the ballot materials “contains any indication that Proposition 47 or the
language of section 1170.18, subdivision (k) was intended to change preexisting rules
regarding appellate jurisdiction.” (Rivera, supra, 233 Cal.App.4th at p. 1100.) Although
the defendant had filed his notice of appeal after the trial court designated his offense a
misdemeanor, “for the purpose of determining appellate jurisdiction, we consider the
nature of the offense at the time it was charged.” (Id. at p. 1101.) In effect, Rivera holds
8
that the subsequent designation of a defendant’s felony conviction as a misdemeanor does
not retroactively change the circumstances existing at the time the defendant was charged
for purposes of appellate jurisdiction.
Here, by contrast, whether Isaia’s prior conviction for buying or receiving
stolen property could serve as the basis for a prior felony conviction enhancement
allegation must be determined based on current facts. When Isaia was resentenced in
March 2015, the prior felony conviction for buying or receiving stolen property had been
designated a misdemeanor and therefore could not serve as the basis of a prior felony
conviction enhancement pursuant to section 667.5(b). On remand, the trial court must
resentence Isaia based on facts currently in existence, including the fact his prior felony
conviction for buying or receiving stolen property has been designated as a misdemeanor.
We recognize that in People v. Jones (2016) 1 Cal.App.5th 221, review
granted September 14, 2016, S235901, the Court of Appeal reached a different
conclusion. In that case, the Court of Appeal concluded: “[N]o provision allows
offenders to request or courts to order retroactively striking or otherwise altering an
enhancement based on . . . a redesignated prior offense. Absent such an express
provision, we cannot apply the statute [(section 1170.18)] retroactively.” (Id. at p. 230.)
We disagree with People v. Jones, which we believe is inconsistent with Estrada, supra,
63 Cal.2d 740, Abdallah, supra, 246 Cal.App.4th 736, and Flores, supra, 92 Cal.App.3d
461. Recognizing the current status of a prior conviction is not the same thing as giving
it retroactive effect.
IV.
Disposition
The order granting, in part, Isaia’s petition under section 1170.187 is
affirmed in part and reversed in part. The matter is remanded with directions to strike the
9
prior felony conviction allegation based on the conviction for buying or receiving stolen
property and to resentence Isaia.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
10
| {
"pile_set_name": "FreeLaw"
} |
644 F.Supp. 499 (1986)
INTERNATIONAL MOLDERS & ALLIED WORKERS, Plaintiffs,
v.
UNITED FOUNDRIES, INC., et al., Defendants.
Civ. No. 85-0879.
United States District Court, M.D. Pennsylvania, Third Circuit Division.
April 7, 1986.
*500 *501 Robert E. Marsh, Jr., Hoegen & Marsh, Wilkes-Barre, Pa., for plaintiffs.
Nathan Greenberg, William W. Warren, Jr., Scranton, Pa., for defendants.
MEMORANDUM AND ORDER
NEALON, Chief Judge.
Plaintiffs filed this action on June 27, 1985, alleging essentially that United Foundries, Inc. ("United Foundries") failed to permit plaintiffs to audit United Foundries' records and failed to make contributions to the pension fund as required by a labor contract between the parties. In Count V of the complaint, plaintiffs assert a claim against, inter alia, Defendant Greenberg (Defendant) pursuant to the Pennsylvania Wage Payment and Collection Law (WPCL). Defendant filed a Motion to Dismiss, or in the alternative, for Summary Judgment on August 21, 1985. In his motion, defendant avers that the court lacks subject matter jurisdiction over the claim, lacks personal jurisdiction over defendant and that Count V fails to state a *502 claim against defendant. See Document 5 of the Record at 2. Defendant filed a supporting affidavit and brief on September 3, 1985 and October 3, 1985, respectively. See Documents 7 and 12 of the Record. By Order dated December 13, 1985, pursuant to defendant's request, the court granted the Motion to Dismiss due to plaintiffs' failure to oppose the motion. See Document 15 of the Record. Pursuant to plaintiffs' motion, in which defendant concurred, by Order dated December 27, 1985, the court vacated the Order of December 13, 1985. See Document 16 of the Record. Plaintiffs filed an opposition brief on December 27, 1985. Defendant filed a reply brief on February 7, 1986. The matter is now ripe for disposition. For the reasons set forth below, defendant's Motion to Dismiss, or in the alternative, for Summary Judgment will be denied.
DISCUSSION
A perusal of plaintiffs' complaint demonstrates that plaintiffs' only claim against defendant is found in Count V of the complaint.[1] The other counts of the complaint either seek judgment against the company (United Foundries) or its present officers, etc. See e.g., Count I Document 1 of the REcord at 5. Defendant's affidavit demonstrates that he is no longer an officer or director of United Foundries. See Document 7 of the Record. Thus, subject matter jurisdiction over the claim against defendant must be predicated on this court's "pendent party" jurisdiction.[2]
In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the United States Supreme Court dealt with the "subtle and complex question" of whether the doctrine of pendent jurisdiction extends to confer jurisdiction over a party as to whom no independent basis of federal jurisdiction exists. Id. at 2-3, 96 S.Ct. at 2415. The court distinguished United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), stating:
but it is quite another thing to permit a plaintiff, who has asserted a claim against one defendant with respect to which there is federal jurisdiction, to join an entirely different defendant on the basis of a state-law claim over which there is no independent basis of federal jurisdiction, simply because his claim against the first defendant and his claim against the second defendant `derive from a common nucleus of operative fact.'
Id. 427 U.S. at 14, 96 S.Ct. at 2420 (citation omitted).
In resolving this issue, the Supreme Court found "as against a plaintiff's claim of additional power over a `pendent party', the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress." Id. at 17, 96 S.Ct. at 2421 (emphasis in original). In so finding, the court held:
If the new party sought to be joined is not otherwise subject to federal jurisdiction, *503 there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim. Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.
Id. at 18, 96 S.Ct. at 2422 (emphasis added).
Plaintiffs assert no federal claim against defendant so that the issue is whether plaintiffs' claim pursuant to the WPCL is properly within this court's subject matter jurisdiction. As defendant avers, assuming arguendo that plaintiffs can assert a claim under the WPCL, see Carpenters Health and Welfare Fund v. Kenneth R. Ambrose, Inc., supra, this court still must determine whether it has subject matter jurisdiction over that claim. See Document 19 of the Record at 6. Subject matter jurisdiction must be established and even a valid claim must fail if subject matter jurisdiction is lacking.
In making this determination, the court must decide whether "pendent party" jurisdiction can be utilized in this case. "The term `pendent party' refers to a case where a party, who has asserted a federal claim against one party over which there is jurisdiction, seeks to join an entirely different party on the basis of a state-law claim over which there is no independent basis of federal jurisdiction." Cheltenham Supply Corp. v. Consolidated Rail Corp., 541 F.Supp. 1103, 1105 n. 3 (E.D.Pa.1982). In light of Aldinger v. Howard, supra, our Court of Appeals has suggested a narrower interpretation of pendent party jurisdiction. See Grodjeski v. Township of Plainsboro, 577 F.Supp. 67 (D.N.J.1983). In fact, in Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), the court stated, "in Aldinger v. Howard, ... the Supreme Court cast grave doubts whether ancillary jurisdiction may be extended to situations where there is no independent basis for subject matter jurisdiction over a party." Id. at 886-87. As the Cheltenham court recognized, however, our Court of Appeals has not directly reviewed the issue of pendent party jurisdiction since Aldinger.[3]Cf. Kerry Coal Co. v. United Mine Workers, 637 F.2d 957, 965 (3d Cir.), cert. denied, 454 U.S. 823, 102 S.Ct. 109, 70 L.Ed.2d 95 (1981) (conclusion that LMRA § 303(b) jurisdiction is insufficient by itself to sustain pendent state law claim against individual union member may be sound). Similarly, the three tiered analysis enunciated in Aldinger has not been repudiated by the Supreme Court.[4] Accordingly, this *504 court is constrained to follow the Aldinger analysis.
This court previously utilized the three-step process set forth in Aldinger to ascertain whether pendent party jurisdiction should be exercised in light of this narrow interpretation. See Wilkes-Barre Publishing Co. v. Newspaper Guild, etc., 504 F.Supp. 54 (M.D.Pa.1980), modified on other grounds, 647 F.2d 372 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982).[5] First, the court must consider whether there is constitutional power to entertain the state law claim. Id. at 63. Secondly, it must be determined whether the Congressional statute conferring jurisdiction over the federal claim expressly or by implication negates the exercise of jurisdiction over the particular non-federal claim. Id. Finally, the court must determine if considerations of judicial economy, convenience and fairness to the litigants compels a discretionary exercise of jurisdiction. Id. at 64.
At the outset, the court finds that there is constitutional power to entertain the pendent state law claim. The WPCL claim is brought in conjunction with significant federal claims that are properly based. Furthermore, the federal and state claims derive from a common nucleus of operative fact such that a court ordinarily would be expected to try them in one judicial proceeding. Id. at 63.
In Wilkes-Barre Publishing Co., this court held that § 301 of the LMRA did not manifest a congressional intent to preclude assertion of pendent party jurisdiction over a tortious interference with contract claim. Id. at 64. The absence of any indication of legislative intent suggesting that defendants were immune from suit under § 301 militated in favor of exercising pendent party jurisdiction. Id. Similarly, in this case, the individual defendants are not immune from suit under the LMRA. Cf. Carpenters Health and Welfare Fund v. Kenneth R. Ambrose, Inc., supra (application of alter ego theory to pierce corporate veil is a factual one that must be supported by the record; individual liability under the LMRA may be based on the alter ego theory). Although plaintiffs fail to assert an alter ego theory and no claim pursuant to federal law is made against defendant, Congress did not negate jurisdiction over individuals pursuant to the alter ego theory. Consequently, defendant conceivably could be liable under the LMRA. Accordingly, the statutory language of the LMRA does not negate the exercise of jurisdiction over the pendent WPCL claim. In so holding, the court recognizes that § 301 does not confer exclusive jurisdiction in the federal courts, thus eliminating one compelling reason for exercising pendent party jurisdiction. Id.
Defendant cites Combs v. Indyk, 554 F.Supp. 573 (W.D.Pa.1982), to support *505 his position that this court lacks subject matter jurisdiction. The Combs case, however, did not discuss the concept of pendent party jurisdiction. The court found no claim under the LMRA or ERISA had been stated against defendants when the record did not suggest that the corporate veil should be pierced. The court dismissed pendent state law claims against defendants only when no viable federal claims remained. Id. at 575. Thus, Combs stands for the proposition that the status of "officer" of a defendant employer does not alone confer liability under the LMRA on an individual defendant. See Amalgamated Cotton Garment & Allied Industries Fund v. J.B.C. Co., 608 F.Supp. 158 (W.D. Pa.1984). This does not mean that individuals are immune from liability, however, because individual liability may be imposed under the LMRA if the individual defendants were acting as alter egos of the defendant employer. Id. at 166. Although a close case, the court finds that there is no Congressional negation of pendent party jurisdiction in the LMRA. See New York Coat, Suit, Dress, Rainwear and Allied Workers' Union v. Sussex Sportswear, Inc., 591 F.Supp. 1528 (M.D.Pa.1984); cf. Chas. Kurz Co. v. Lombardi, 595 F.Supp. 373 (E.D.Pa.1984).
Finally, considerations of judicial economy, convenience and fairness to the litigants compels the discretionary exercise of pendent party jurisdiction in this case. The federal and state law claims are factually related and it appears that similar findings to impose liability are required for both claims. Therefore, the court finds that under a fair reading of Aldinger, it has subject matter jurisdiction over plaintiffs' WPCL claim against defendant.
A similar result is reached in connection with plaintiffs' ERISA claims.[6] As with claims pursuant to the LMRA, a court may apply several factors in determining whether to pierce the corporate veil and impose individual liability under ERISA. See Solomon v. Klein, supra. In Solomon, our Court of Appeals recognized that individual liability may exist under ERISA if the corporate veil is pierced. See also Amalgamated Cotton Garment & Allied Industries Fund v. J.B.C. Co., supra, at 167 (individual defendants are not liable under ERISA unless they were acting as alter egos of the defendant employer). Thus, as with the LMRA, ERISA does not immunize an individual officer from liability. Furthermore, it appears that federal courts have exclusive jurisdiction over ERISA suits in which fiduciaries of a benefit trust allege violations of an employer's duty under a collective bargaining agreement to make payments into the benefit trust.[7]See Livolsi v. Ram Construction Co., Inc., 728 F.2d 600 (3d Cir.1984). The fact that this court may have exclusive jurisdiction over at least part of plaintiffs' ERISA claim is another compelling reason militating in favor of exercising pendent party jurisdiction. Wilkes-Barre Publishing Co. v. Newspaper Guild, etc., supra.
Defendant asserts two (2) other grounds in support of its Motion to Dismiss. Defendant maintains that the complaint must be dismissed because the court lacks personal jurisdiction over defendant. Defendant avers that "the necessary link or relationship required to confer personal jurisdiction under the due process clause and the Pennsylvania Long Arm Statute is lacking and the complaint must be dismissed." See Document 12 of the Record at 9.
The reach of the Pennsylvania statute is co-extensive with the due process clause of the United States Constitution. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984). Once the jurisdictional defense has been *506 raised, plaintiff bears the burden of demonstrating contracts with the forum state sufficient to give the court in personam jurisdiction. Id. Plaintiffs contend that they "should have the opportunity to further explore through discovery" the nature of defendant's contacts with this forum. See Document 17 of the Record at 5. The court agrees with plaintiffs.
Ordinarily, a court must determine whether plaintiffs seek to obtain general jurisdiction or specific jurisdiction over defendant. The first, general jurisdiction, exists when the claim does not arise out of or is unrelated to the defendant's contacts with the forum. See Dollar Savings Bank v. First Security Bank of Utah, 746 F.2d 208 (3d Cir.1984). The second, specific jurisdiction, is invoked when the claim is related to or arises out of the defendant's contacts with the forum. Id. The minimum contacts analysis is insufficient when the defendant's forum activities do not give rise to the claim. In invoking general jurisdiction, plaintiffs must demonstrate that defendant maintained "continuous and substantial forum affiliations." Id. See also Helicopters Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (unless a defendant has "continuous and systematic general business contacts" with the forum state, the cause of action must arise from activities within the forum state). When the plaintiff's claim is not clearly frivolous, a district court should ordinarily allow discovery on jurisdiction in order to aid the plaintiff in discharging his burden of establishing in personam jurisdiction. Compagnie Des Bauxites DeGuinee v. L'Union Atlantique, S.A. D'Assurances, 723 F.2d 357, 362 (3d Cir.1983). The scope of this discovery must be broad enough to allow plaintiff to pursue both the "minimum contacts" and "continuous and systematic contacts" theories until one or the other is ruled out. Id. at 363. Accordingly, defendant's motion will be denied so that plaintiffs may commence discovery in an attempt to establish personal jurisdiction over defendant.
Finally, defendant contends that the complaint must be dismissed because it fails to state a claim on which relief can be granted. "Generally, a complaint need not detail facts sufficient to state a cause of action; rather it must contain only a `short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment.'" Ruppert v. Lehigh County, 496 F.Supp. 954, 956 (E.D.Pa. 1980). In ruling upon a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true all of the well-pleaded allegations of the complaint and the complaint must be construed in a light most favorable to plaintiff. See Banghart v. Sun Oil Co., 542 F.Supp. 451 (E.D.Pa.1982). Plaintiff's claim should not be dismissed unless it appears beyond doubt that it can prove no set of facts in support of its claims which would entitle plaintiff to relief. Id. In light of this standard, defendant's Motion to Dismiss will be denied.
Plaintiffs contend that defendant is individually liable pursuant to the WPCL. Plaintiffs seek to impose this liability, in part, because defendant was an agent or officer of United Foundries within the meaning of the WPCL. Document 1 of the Record at ¶ 30. See also New York Coat, Suit, Dress, Rainwear and Allied Workers' Union v. Sussex Sportswear, Inc., supra, at 1533 n. 5 (complaint alleged defendant was an officer of corporation; sufficient to make defendant an employer under Pennsylvania law). While defendant maintains that he "never had responsibilities as either an officer or an agent with respect to any such obligations" concerning union pension obligations, see Document 7 at ¶ 8, it may be that further discovery will reveal enough facts favorable to plaintiff to sustain plaintiff's WPCL claim against defendant. See Musikiwamba v. Essi, Inc., 760 F.2d 740 (7th Cir.1985). Thus, the Motion to Dismiss will be denied.
Defendant relies on the Affidavit of Nathan A. Greenberg in support of its alternative request for summary judgment. Considering the present record, the court *507 cannot find that there are no material facts in dispute and that defendant is entitled to judgment as a matter of law. Summary judgment is a "drastic remedy", see Reilly v. Firestone Tire & Rubber Co., 764 F.2d 167 (3d Cir.1985) and can only be entered "if appropriate." See Fed.R.Civ.P. 56(e). The court may not resolve conflicting factual contentions on a Motion for Summary Judgment. Paton v. LaPrade, 524 F.2d 862 (3d Cir.1975). In this case, certain material facts are at issue. Of course, should it later be determined that the proper factual predicate for maintaining a WPCL claim against defendant does not exist, defendant may renew his Motion for Summary Judgment or, as the case may be, may move for a directed verdict. Thus, defendant's Motion for Summary Judgment will be denied.[8]
NOTES
[1] Plaintiffs do not assert claims pursuant to the Labor Management Relations Act (LMRA) or the Employee Retirement Income Security Act (ERISA) against defendant. Thus, the issue of individual liability under the LMRA or ERISA is not before the court. The court recognizes, however, that if the factual circumstances support an alter ego theory, then individual defendants may be held personally liable under both the LMRA and ERISA. See Carpenters Health and Welfare Fund v. Kenneth R. Ambrose, Inc., 727 F.2d 279 (3d Cir.1983); Solomon v. Klein, 770 F.2d 352 (3d Cir.1985). Accordingly, both the LMRA and ERISA, as interpreted in this circuit, permit actions against individual defendants if the proper factual predicate can be established.
[2] Apparently, there is no other independent basis of federal jurisdiction over defendant. The record indicates, however, that defendant is a citizen of New York. See Document 7 of the Record at ¶ 1. Moreover, Defendants United Foundries and Ernest Priebe apparently are citizens of Pennsylvania. On the other hand, Plaintiff Pension Fund and plaintiff trustee seem to be citizens of Ohio. Accordingly, complete diversity may exist. See e.g., Navarro Savings Assn. v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). This issue need not be addressed in light of this court's finding that the doctrine of pendent party jurisdiction applies in this case.
[3] For example, in Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir.1979), the federal ERISA claim against a defendant was withdrawn right before trial and the Court of Appeals recognized that it was unclear whether the district court reached the question of whether to exercise discretion and decide the pendent claim. Instead, the court stated, "it is as likely that the court accepted jurisdiction over the malpractice claim on the closely related doctrine of pendent party jurisdiction." Id. at 479. The court did not, however, have to decide which jurisdictional power the district court relied on. In so doing, the court held:
even if we assume that the district court based jurisdiction over the malpractice claim on pendent-party jurisdiction without expressing an opinion as to the propriety of pendent jurisdiction based on the ERISA claim against Muller, we think it proper that this case should be reviewed as if the district court exercised its discretion to exercise pendent jurisdiction.
Id.; see Livolsi v. Ram Construction Co., Inc., 728 F.2d 600, 601 n. 2 (3d Cir.1984) (plaintiffs did not bring action against defendant officers under ERISA; appeared to the court that officers were in federal court on basis of claims lodged under state law; citing Aldinger). See also Kuehner v. Schweiker, 717 F.2d 813, 828 n. 17 (3d Cir.1983), vacated 469 U.S. 977, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984) (Becker, J., concurring) (pendent-party jurisdiction is another basis for jurisdiction over individual state defendants if mandamus jurisdiction does not apply; citing Aldinger); Sansom Committee v. Lynn, 735 F.2d 1535 (3d Cir.), cert. denied, 469 U.S. 1017, 105 S.Ct. 431, 83 L.Ed.2d 358 (1984) (Garth, J., dissenting) (Aldinger discussed; trend against expansive pendent-party federal question jurisdiction; statute conferring federal jurisdiction must be examined).
[4] In fact, this analysis met with approval in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Although dealing with diversity jurisdiction, the Supreme Court stated:
the Aldinger and Zahn cases thus make clear that a finding that federal and nonfederal claims arise from a `common nucleus of operative fact,' the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the non-federal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether `Congress in [that statute] has ... expressly or by implication negated' the exercise of jurisdiction over the particular nonfederal claim.
Id. at 373, 98 S.Ct. at 2402 (citation omitted).
[5] This court held that § 301 of the LMRA did not confer subject matter jurisdiction over tortious interference claims against defendants who were not signatories to the collective bargaining agreement. Id. at 63. In light of this holding, the court determined whether pendent party jurisdiction would be utilized to "cover" these defendants. Id. Our Court of Appeals did not address the pendent party issue because it found that a claim of tortious interference with a labor contract is one arising under federal common law, over which a district court has jurisdiction. 647 F.2d at 381. In deciding the issue, the court stated, "the pendent state law claim against them (remaining defendants) can be entertained only if the complaint alleges some other nonfrivolous independent basis for district court jurisdiction over them." Id. at 376 (emphasis added). While it may follow a narrow interpretation, our Court of Appeals has not foreclosed the use of pendent party jurisdiction.
[6] The analysis under the first and third step is the same as that already set forth. The only remaining question is whether ERISA negates the exercise of pendent party jurisdiction over the WPCL claim against defendant.
[7] Suits pursuant to ERISA to declare the rights of a participant or a beneficiary under a plan or to recover benefits due under a plan are within the concurrent jurisdiction of federal and state courts. Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923 (3d Cir.1985).
[8] The court's disposition of defendant's motion renders extended discussion on plaintiffs' contention that pending bankruptcy proceedings involving United Foundries requires that this action be "stayed" unnecessary.
| {
"pile_set_name": "FreeLaw"
} |
ACCEPTED
04-15-00691-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/6/2015 4:14:49 PM
KEITH HOTTLE
CLERK
NO. 04-15-00691-CV
FILED IN
Fourth Court of Appeals 4thSANCOURT OF APPEALS
ANTONIO, TEXAS
San Antonio, Texas 11/6/2015 4:14:49 PM
KEITH E. HOTTLE
__________________________________________________________________
Clerk
ARMANDO HERNANDEZ and NANCY HERNANDEZ, Appellants,
V.
MARIO SALDIVAR and FERNANDO SALDIVAR, Appellees.
_____________________________________________________________________________________
APPELLEES’ RESPONSE TO APPELLANTS’ MOTION
TO EXTEND TIME TO FILE NOTICE OF APPEAL
_____________________________________________________________________________________________
On appeal from the 150th Judicial District Court, Bexar County, Texas
Case No. 2014-CI-17077
Honorable Barbara Nellermoe, Presiding
____________________________________________________________________________________________
Jeffrey A. Hiller
State Bar No. 00790883
[email protected]
CACHEAUX, CAVAZOS & NEWTON, LLP
333 Convent Street
San Antonio, Texas 78212
(210) 222-1642
Royal B. Lea, III
State Bar No. 12069680
[email protected]
BINGHAM & LEA, P.C.
319 Maverick Street
San Antonio, Texas 78212
(210) 224-1819
COUNSEL FOR APPELLEES,
MARIO SALDIVAR AND FERNANDO
SALDIVAR
Introduction
The Court should deny the Motion to Extend for two reasons. First,
Appellants offer no reason or excuse at all for failing to file the notice of
appeal on time. And second, Appellants should not rewarded for their
conduct described below.
Argument
First, Appellants offer no reason or excuse for failing to file a notice
of appeal within ninety days of the judgment. They offer the excuse that
their counsel miscalculated the deadline for filing a supplement to a motion
for new trial in the trial court. But nothing about that excuse or
miscalculation provides any reason or excuse for their not timely filing a
notice of appeal on or by the 90-day deadline for filing a notice of appeal
(after filing a motion for new trial) in this Court. There is simply no reason
offered for why Appellants failed to file a timely notice of appeal. Without
even the attempt to explain their failure to meet the deadline, the Motion to
Extend should be denied.
Second, Appellants seek leave to file a late notice to appeal the Hon.
Barbara Nellermoe’s order granting final summary judgment against them
for fraud, conspiracy and breach of fiduciary duty, among other things.
Given the extraordinary facts of this case, and the unparalleled duplicitous
2
conduct by the Herandezes, leave should be denied. This Court has some
familiarity with the underlying circumstances. See case numbers 04-15-
00129-CV and 04-15-00132-CV in this Court.
Armando Hernandez is an admitted, infamous, treacherous thief who
used the Catholic Church to victimize the Saldivars and their family. He not
only betrayed the Saldivar’s trust and stole the Saldivars’ family savings and
business funds, but he (with the assistance of Nancy Hernandez) violated
trial court orders and used the Saldivars’ stolen funds to hire lawyers (no
doubt, including their recently hired counsel) to escape the consequences of
his admittedly criminal conduct.
In fact, Armando Hernandez has been charged and is being prosecuted
by the United States of America in Case No. 15-cr-00185, styled United
States of America v. Armando Jesus Hernandez, United States District Court
for the Western District of Texas, San Antonio Division. In that case,
Hernandez has pleaded guilty, and has already admitted he stole $45M from
the Saldivars, and owes them at least that much. A copy of the written plea
agreement between Hernandez and the United States Government in which
Hernandez admits he owes the Saldivar family more than $45 million in
restitution is submitted with this Response.
Although Appellants offer no explanation for missing the deadline for
filing a notice of appeal, they do refer to their untimely supplement to their
3
motion for new trial in the trial court. In their motion for new trial, they say
they owe the Saldivars less than the $36 million awarded in the summary
judgment. In fact, now in their late filed supplemental motion for new trial
they say the overpaid the Saldivars by mere $4 million. Appellees ask the
Court to take judicial notice of the motion the Appellants filed in the trial
court on November 3, 2015, not for the truth of what the Hernandezes say,
but only to see the glaring inconsistency between that motion and the guilty
plea in federal court. The Hernandezes entirely fail to tell this Court (and
entirely failed to tell the trial court) that Armando Hernandez has already
admitted in his guilty plea in his federal criminal case that the actual amount
they owe is more than $45 million. Amazingly, the Hernandezes say in their
November 3 Motion in the trial Court they gave the FBI the documents that
show their overpayment by more than $4 million, but entirely fail to mention
or explain the guilty plea and admission of restitution of more than $45
million.
The Hernandezes chose to use the time since they hired their new
counsel to misdirect the trial Court with a story about why they owe less than
$36 million when, in fact, there is a judicial admission in federal court that
they actually owe more than $36 million. They should not be rewarded for
their duplicity.
As they have done throughout this litigation (after repeatedly invoking
4
their Fifth Amendment privilege and refusing to testify or provide any
information), the Hernandezes essentially ask the Courts to give them more
time after they have waited until after the last minute to hire lawyers. And
then the Hernandezes once again show their utter inability to show any
candor to the Court. Leave should be denied.
Prayer for Relief
Accordingly, Appellees respectfully request this Honorable Court to d e n y
l e a v e t o extend the time for A p p e l l a n t s ’ f i l i n g o f t h e i r Notice of
Appeal. Appellees pray for such other and further relief, at law or in equity, as
to which they shall show themselves justly entitled.
5
Respectfully submitted,
Cacheaux, Cavazos, & Newton, LLP
333 Convent Street
San Antonio, Texas 78205
(210) 222-1642 Telephone
(210) 222-2453 Facsimile
[email protected]
Bingham & Lea, P.C.
319 Maverick Street
San Antonio, Texas 78212
(210) 224-1819 Telephone
(210) 224-0141 Facsimile
[email protected]
By: /s/ Royal B. Lea, III
JEFFREY A. HILLER
State Bar No. 00790883
ROYAL B. LEA, III
State Bar No. 12069680
ATTORNEYS FOR APPELLEES
MARIO SALDIVAR and FERNANDO
SALDIVAR
6
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been forwarded on this 6th day of November, 2015, via the electronic service system
provided through Texas.gov to Appellees’ counsel and all other counsel in this matter:
Ricardo G. Cedillo Gilberto A. Siller
[email protected] [email protected]
Isaac J. Huron THE SILLER LAW FIRM
[email protected] 1580 S. Main Street, Ste. 200
DAVIS, CEDILLO & MENDOZA INC Boerne, Texas 78006
755 E. Mulberry Ave., Ste. 500
San Antonio, Texas 78212 Receiver
Counsel for Appellants,
Armando Hernandez and Nancy
Hernandez
/s/ Royal B. Lea, III
JEFFREY A. HILLER
ROYAL B. LEA, III
7
IN THE VNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TE AS
SAN ANTONIO DIVISION
UC'IITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CRIMINAL NO. SA-15-CR-185-DAE
)
)
ARMANDO JESUS HERNANDEZ LEAL, )
)
Defendant. )
PLEA AGREEMENT
The T:nited States Attorney for the Western District of T xas, by and through the
undersigned Assistant United States Attorney, and the Defend t, ARMANDO JESUS
HERNANDEZ LEAL, personally and by and through Alfonso abanas, Attorney for the
Defendant, enter into the following plea bargain at,'l'eement pursuant to Rule ll(c)(l), l'ederal
Rules of Criminal Procedure:
Defendant's Agreement to Plead Guiltv
Defendant agrees to plead guilty to Count Eight of the Supe seding Indictment, whi~h
charges him with the offense of money laundering, in violation of Tit e 18, United States Code
§§!956(a)(l)(B) and 2, on or about November 27,2013.
Punishment
The offense to which the Defendant is pleading guilty carries th following penalties:
a. Maximum prison term: 20 years
b. Maximum fine: $250,000.00
c. Maximum term of supervised release: 3 years
I
r-----------------------------------------------------------------------------------------------
e. A mandatory monetary assessment in the amount of $100.00.
Any term of imprisonment is not subject to parole.
Advice of Rights, Collateral Consequences, and Waiver of Rights
The Defendant understands that he has the following rights:
I. The right to plead not guilty, or having already so pleaded, to persist in that plea;
2. The right to a trial by jury;
3. The rights at trial to confront and cross-examine adverse witnesses; to be protected
from compelled selt~incrimination (the right to remain silent); to testify and present
evidence; and to compel the attendance of witnesses;
4. The right to be represented by counsel-and if necessary to have the court appoint
counsel at public expense-at trial and at every other stage of the proceeding.
By pleading guilty, the Defendant understands that he waives and gives up the first three
categories of the rights listed above: the right to plead not guilty, the right to a jury trial, and the
rights to confront and cross-examine adverse witnesses, to remain silent, Lo testify and present
witnesses, and to compel the attendance of witnesses at trial. By pleading guilty the Defendant
gives up his right to remain silent and convicts himself; there will be no jury trial; no witnesses to
prove guilt; no cross-examination or confrontation of witnesses; no opportunity to testifY and
present evidence; and no opportunity to compel the attendance of witnesses. The Court may
require the Defendant to answer truthfully questions about the offense, and the Defendant may be
prosecuted if he knowingly makes false statements or gives false answers.
The Defendant understands that in addition to the punishment described above, his guilty
plea and conviction may have other or collateral consequences. These consequences may
adversely affect such things as the Defendant's right to possess firearms, the right to vote, as well
2
as the immigration status of a defendant who is not a U.S. Citizen. For example, a plea of guilty
could result in the loss of a defendant's visa, permanent resident alien status, or other basis for
being in the U.S., the deportation or removal of the defendant from the United States, the denial of
naturalization, or the ability to ever lawfully enter the U.S. Defendant has discussed with his
attorney the punishments and consequences of pleading guilty, understands that not all of the
consequences can be predicted or foreseen, and still wants to plead guilty in this case.
In addition to giving up the rights described above, the Defendant agrees to give up and
waive the following:
Pretrial Motions: The Defendant understands that he could raise a number of issues and
challenges by pretrial motion, including motions to suppress evidence and to dismiss the
charges against him. By ente1ing into this agreement and pleading guilty, the Defendant
agrees to give up any and all claims he has made or might have made by pretrial motion,
and agrees to the dismissal of any motions that currently are pending.
Discovery: In addition to waiving pretrial motions, the Defendant agrees to give up and
waive any claims he may have now or may acquire later to any information possessed by
the prosecution team that might be subject to disclosure under discovery rules, including
the Federal Rules of Criminal Procedw·e, the .lenck~ Act, local court rules, and Court
Orders, including inf01mation that might be considered exculpatory or impeaching under
Brady v. Maryland, and Giglio v. United States.
Appeal: Ibe Defendant agrees to waive and give up his right to appeal his conviction or
sentence on any ground, except in a case in which the sentence imposed by the Court is
greater than the maximum sentence authorized by statute.
Collateral Attack: The Defendant agrees to waive and give up his right to challenge his
3
conviction or sentence in a post-conviction collateral challenge, including but not limited
to a proceedings pursuant to 28 U.S.C. §§ 2241 and 2255; except, the Defendant does not
waive his right to raise a challenge based on ineffective assistance of counsel and
prosecutorial misconduct. In the event the Defendant makes such a claim, he hereby agrees
to waive any claim of attorney/client privilege arising from counsel's representation.
Attorneys' Fees: The Defendant hereby stipulates and agrees that he is not entitled to and
shall not seek from the United States any attorneys' fees he incurred in connection with this
prosecution.
Defendant's Agreement on Restitution
The Defendant agrees to be held liable to pay restitution to the Saldivar family in lhe
amount of $45,868,260.69.
Defendant's Agreement to Cooperate
The Defendant agrees to cooperate with the U.S. Attorney's Office, and with law
enforcement agents as directed by the U.S. Attorney's Office, as follows:
Defendant agrees to make a good faith effort to pay any fine, forfeiture, or restitution
ordered by the Court.
Before or after sentencing, the Defendant agrees to provide, upon request by the Court, the
U.S. Attorney's Office, or the U.S. Probation Office, in whatever form requested, accurate
and complete financial information, and to submit sworn statements and give depositions
under oath concerning all assets and his ability to pay.
The Defendant also agrees to surrender and release any assets, money, or other property,
whether or not derived from the commission of crimes, as well as any infonnation about
said assets, in order to satisfy any fine, forfeiture or restitution order entered by the Court.
4
This includes signing any waivers, consents, or releases required by third parties.
The Defendant agrees to identify any transfer of assets made for the purpose of evading or
defeating financial obligations, and to refrain from making any such transfers.
If the Defendant agrees to restitution, or if the Court orders restitution, the Defendant
agrees to the immediate sale of any properties he owns and that the proceeds of those sales
shall be applied to any order of restitution. Defendant agrees to take any reasonable
actions requested by the government to facilitate payment of restitution.
The Defendant further agrees to cooperate \vith the U.S. Attorney's Office and law enforcement
authorities as requested in the investigation and prosecution of other criminal offenses. That
cooperation includes, but is not limited to, the foiiO\ving:
I. Provide complete and truthful information to the U.S. Attomey's Otlice and law
enforcement officers about Defendant's knowledge of any and all criminal activities of all
persons, including all documents or other materials requested by the government,
including permission to access materials held by third parties;
2. Provide truthful testimony in any grand jury, trial or other proceeding;
3. Request continuances of sentencing hearings as necessary, until the cooperation has
been completed;
4. Disclose any contacts \vith co-defendants or subjects of any investigation, including
altorneys and others acting on their behalf;
5. Refrain from committing any additional criminal offenses, and comply with conditions
of release imposed by the Court;
6. Cooperate \vith the government to identify, surrender, and forfeit any assets the
Defendant obtained directly or indirectly from or used to facilitate illegal conduct.
5
In exchange for Defendant's cooperation in the investigation ami prosecution of other
offenses, the United States Attorney's Office for the Western District of Texas agrees that:
1. The government will not use any truthful statements, testimony or information
provided by the Defendant pursuant to this agreement against the Defendant at sentencing
or as the basis for further prosecution, except as provided below.
Exceptions: (A) Absent written moditlcation, this agreement not to usc statements docs not
apply to information pertaining to any death, sexual assault, murder or felony crime of
violence; (B) Statements or information may be used in: (I) cross-examination or rebuttal
in any proceeding in which the Defendant makes a statement; (ii) any prosecution against
the Defendant for perjury, making false statements, or obstruction of justice; (iii) in
response to any motion or pleading made by the Defendant where the information is
relevant to an issue raised by the Defendant; (iv) for any purpose if the Defendant breaches
this agreement; or (v) submission to the Court or Probation Office for any purpose other
than calculating the advisory Guideline range or determining appropriate sentence.
2. At the time of sentencing, and after the imposition of sentences if the U.S. Attorney's
Oflice determines that circumstances warrant, the government will make known to the
sentencing court the nature and extent of the Defendant's cooperation and assistance to law
enforcement authorities. It is within the sole discretion of the U.S. Attorney's Office to
determine whether to file motions pursuant to 18 U.S.C. § 3553(e), U.S.S.G. SKI.l, and/or
Rule 35, Federal Rules of Criminal Procedure, requesting the sentencing court to depart
from a supervisory guidelines range, impose sentence below a mandatory punishment, or
reduce a sentence already imposed, and if so, the extent of such departure, variance or
reduction of sentence. The Defendant understands that the decision to seek a reduced
6
sentence is not contingent upon the conviction of any other person, and further, that the
extent of any departure, variance or reduction of sentence is within the sole discretion of
the Court.
Government's Agreement
In exchange for Defendant's agreement to plead guilty, waive the rights listed above, and to
cooperate, the United States Attorney's Office for the Western District of Texas agrees to the
following:
Forebear Filing Charges: The government agrees that it shall 110t pursue additional
charges against the Defendant that arise from the facts surrounding the commission of this
ofiensc and which are known or which reasonably could have been known to the U.S.
Attorney's Office prior to entering this plea bargain agreement, or which are disclosed by
the Det(mdant during his truthful debriefing or cooperation with the U.S. Attorney's Office.
Sentencing: Subject to the government's obligation to provide all relevant information to
the sentencing court, and to the extent consistent with that information, the government
agrees as follows:
Acceptance of Responsibility: The government will recommend that the
Defendant receive a three level downward adjustment for acceptance of
responsihi lity.
Sentence Recommendation: The government will recommend that the Court
impose a sentence at the low end of the Sentencing Guideline range found by the
Court.
Forfeiture: In the interests of providing full restitution to the victims of this
offense, the Government will forgo any forfeiture as set out in the indictment.
7
Regarding the imposition of sentence, the Defendant understands that the Court decideR the
punishment that will be imposed. The Court shall determine the sentence to be imposed in
accordance with 18 U.S.C. § 3553(a), after considering the application of the Sentencing
Guidelines. The Guidelines are advisory and not binding, although the Court is required
to consider them. Any prediction or estimate of the probable sentencing range or
ultimate sentence that rna)' be imposed, whether from the government, bislber
attorney, or the Probation Office, is not a promise, is not binding, and is not an
inducement for the Defendant's guilty plea or waivers. The Defendant will not be
permitted to withdraw his guilty plea because the sentence imposed differs from the
sentence he/she expected or hoped for.
Notwithstanding the above provisions, both the government and the Defendant reserve the rights
to: (1) inform the U.S. Probation Office and the Court of all information relevant to determining
sentence; (2) dispute facts relevant to sentencing; (3) seek resolution of disputed facts or factors in
conference with opposing counsel and the U.S. Probation Office; (4) allocute at sentencing
(consistent with promises by the government concerning recommended findings and punishment);
and (5) request the Court to depart from the applicable supervisory guideline range based upon
aggravating or mitigating factors.
Breach of Agreement
In the event the Defendant violates or breaches any of the terms of the plea agreement,
including his agreement to cooperate, the government will be released from its obligations under
this agreement and in its sole discretion may do any or all of the following:
I. Move to set aside the Defendant's guilty plea and proceed on charges previously filed
and any additional charges;
8
2. Use against the Defendant any statements or information provided by Defendant
during the course of his cooperation, at sentencing or in any prosecution;
3. Seek additional charges based on false statements, perjury, obstruction of justice, or
any other criminal acts committed by Defendant before or during his cooperation,
including offenses disclosed during Defendant's cooperation;
4. Seek to revoke or modiJY conditions of release;
5. Decline to tile a motion for a reduced sentence.
Defendant's breach ofthis agreement wilJ not entitle him to withdraw a guilty plea already entered.
Factual Basis for the Guilty Plea
If the Defendant went to trial on the charge to which he agrees to plead guilty, the
Defendant agrees that the government's evidence would prove the following, establishing proof
beyond a reasonable doubt of each of the elements of the crime charged:
';r In 2006, ARMANDO JESUS HERNANDEZ LEAL (hereinafter HERNANDEZ)
( presented Mario Saldivar (hereinafter M. Saldivar) with what HERNANDEZ purported to be an
investment opportunity through the company, Investment Professionals, Inc. (!PI) located in San
Antonio, Texas. HERNANDEZ told M. Saldivar that Sunport Capital, an investment ±lrm
which HERNANDEZ claimed that he had 15% ownership in, would service M. Saldivar's account
with !PI. The trust M, Saldivar had in HERt'lANDEZ was instrumental in Saldivar's decision to
invest with IPI through Sunport Capital. In 2006, M. Saldivar invested $500,000.
M. Saldivar made subsequent investments with IPJ through HERNANDEZ. In addition,
1\1. Saldivar's two brothers, Jorge Saldivar and Femando Saldivar, also businessmen, decided to
invest with HERNANDEZ. M. Saldivar's mother Myrthala Saldivar and M. Saldivar's
brother-in-law, Jorge Calderon, also invested with HERNAJ\DEZ. Between 2005 and 2014, M.
9
Saldivar and his family invested approximately $50 million with HERNANDEZ. During this
time, HERNANDEZ emailed monthly account statements to M. Saldivar. The account
statements were provided toM. Saldivar in an English language format. M. Saldivar's primary
language is Spanish and he has limited understanding of English. Based on the account statements,
M. Saldivar and his family continued to invest money with HERNA~DEZ.
On or about November 4, 2013, M. Saldivar received an email from HERNANDEZ's
gmail accotmt containing an attached Account Statement for M. Saldivar's company, Asser
Global, Inc., for the month of October 2013. The Account Statement had an IPI letterhead and
listed Sunport Capital as the office servicing the account and Pershing Securities Corp. as the
clearance agent. The Account Statement provided a listing of the asset allocation, portfolio
holdings, and transactions forM. Saldivar's investment. M. Saldivar's margin debt was listed as
$65 million on the first page of the statement. The margin debt had a 6% interest rate.
HERNANDEZ led M. Saldivar to believe he owed monthly interest payments on this margin debt
\ that had been extended to him by Pershing Securities Corp. In fact, and unknown to M. Saldivar,
I the Account Statement attached to the email was fraudulent in its entirety and had been
manufactured by HERNADNEZ to induce M. Saldivar's payment~.
On or about November 13, 2013, M. Saldivar sent a wire transfer from his bank account in
Mexico in the amount of$50,000 to a Frost Bank account own~d by Capital in Movement, LLC.
Capital in Movement is a company that is controlled by HERNANDEZ. On or about November
14, 2013, M. Saldivar sent a wire transfer Jrom his bank account in Mexico in the amount of
$50,000 to the Capital in Movement, LLC account. These wire transfers represented a portion of
the monthly interest payments on the margin debt M. Saldivar believed had been extended to him
by Pershing Securities. M. Saldivar believed Capital in Movement, LLC was collecting these
10
payments as an Advisor of Sunport Capital. M. Saluivar expected these interest payments to be
made to Pershing Securities.
In 2014, HERNANDEZ subsequently admitted that he had been committing a fraud on the
Saldivar family and that he was responsible for the loss of the Saldivar family funds.
HERNANDEZ asked M. Saldivar for forgiveness and requested he take care of HERNANDEZ's
wife and children. M. Saldivar told HERNANDEZ he was forgiven, but requested a setllement
be handled through their attorneys. On September 12, 2014, HERNANDEZ sent a formal
confession from his [email protected] email account to members of the
Saldivar family and his wife, which read as follows [Email has been translated from Spanish to
English]:
"Dear family,
I would like to offer you an apology and admit to the following:
1. I asked you to send money through accounts in Mexico and the United States to have it
invested in your accounts.
2. The money was not invested in any way.
3. The investments shown on the statements sent to your emai I addresses do not exist, nor are
they under the company shown in the statement.
4. I prepared the statements and they are completely false.
5. I used the money for my personal benefit.
6. I 'm willfully preparing this statement to avoid publicity and your filing a criminal
complaint. I promise I will give you back your money in cash, assets, and properties. This
transfer will start on Monday, September 15, 2014.
7. First thing on Monday, I will talk to Atty. Briseno to initiate the transfers and process.
11
Sincerely,
Armando .T. Hernandez"
Examination of the bank records has determined that HERNANDEZ directed M. Saldivar
and other members of his family to deposit money into an account at Frost Bank entitled the
"Capital in Movement" account. The Capital in Movement account belonged to Capital in
Movement LLC, a company established by HERNANDEZ. Gregorio Medina (Medina) and
Jessica Castillo (Castillo), employees of HERNANDEZ, were the signatoties for this account.
Once money was deposited, HERNANDEZ would direct the transfer of the money to other
entities, most often to two other Frost bank accounts; one belonging to Regina Capital Investment
LLC (Regina), and the other belonging to Corporate Values Management, LLC (Corporate
Values). Regina was formed by Medina. Medina and Castillo are listed as the managers and
accountant Juan Carlos Almanza (Almanza) is listed as the registered agent. Similarly, Corporate
Values was formed by Medina. Medina and Castillo arc listed as the managers and Almanza is
listed as the registered agent. Although Medina and Castillo were employees of HERNANDEZ
at the time that the companies were formed and the accounts were opened at Frost Bank,
HERNANDEZ's name is not associated with the paperwork for either the companies or the
accounts during this petiod and his ownership interest is concealed.
Once money was transferred from the Capital in Movement account to either the Regina or
Corporate Values accounts, the money would then be used to pay the personal expenses of
HERNANDEZ, including loans, meeting payroll, paying Vetizon and AT&T bills, utility and
credit card bills, and transfers to other of IffiRNANDEZ's personal accounts. The Regina and
Corporate Values accounts were designed solely to conceal the transfer of money from the Capital
in Movement account to HERNANDEZ's personal use.
12
On November 27, 2013, HERNANDEZ directed that $37,000.00, money previously
received through the fraudulent scheme from M. Saldivar, be transferred from the Capital in
Movement account to the Regina account. The transfer was accomplished on that date and the
money was subsequently used to pay HERNANDEZ's personal debts.
HERNANTIEZ was aware that the funds being transferred to the Regina account on the
date in question were the proceeds of a specified unlawful activity, to wit: wire fraud. He
knowingly conducted the transaction with the intent to conceal the true source, ownership and
control ofthe proceeds.
Voluntariness
In entering into this Plea Bargain Agreement, agreeing to plead guilty, and waiving the
rights set forth above, the Defendant affirms the follo~~ving:
I. The Defendant has diswssed with his attorney the charges, the possible punishment
upon conviction, the evidence and any defenses to the charges, and the benefits and risks of
going to trial.
2. The Defendant understands that he has a right to plead not guilty, and by entering this
agreement and pleading guilty he is waiving or giving up a nun1ber of important rights,
described above.
3. The Defendant has had sufficient time to discuss lhe case with his attorney, and is
satistied with the advice given by counsel.
4. The Defendant is not under the influence of alcohol, drugs or medicines and
understands the gravamen of the proceedings and the importance of the decision to plead
guilty and waive rights.
13
5. The Defendant enters this agreement and decision to plead guilty voluntarily, and not
on account of force, threats, promises or inducements, apart from the promises and
inducements set forth in this agreement.
6. The Defendant agrees to plead guilty because he is guilty ofthe offense charged.
Entire Agreement
This Plea Bargain Agreement constitutes the entire agreement between the Defendant and
the United States Attorney's Office and is binding only upon those parties. No other promises,
inducements or agreements have been made or entered into between the parties. The Court may
accept or reject this agreement, and may defer this decision until it has reviewed the pre-sentence
repm1. If the Court accepts the agreement, but declines to follow the government's sentencing
recommendations, the Defendant has no right to withdraw his guilty plea.
DATE I 1
~ -- rz-o - 2-c r
DATE
Defendant
14
| {
"pile_set_name": "FreeLaw"
} |
35 F.3d 559
Pearsonv.Northwestern National*
NO. 94-60238
United States Court of Appeals,Fifth Circuit.
Aug 22, 1994
1
Appeal From: S.D.Miss.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.