text
stringlengths 1
1.21M
| meta
dict |
|---|---|
114 F.3d 1174
John M. Vrettosv.Dr. Jeffrey C. Bogden, D.M.D., New Jersey DentalAssociation, New Jersey Board of Dentistry, Ralph S. Reilly,D.M.D.; John M. Vrettos v. Borough of North Plainfield,Windsor Terrace Condominium Association, Maryann L.Nergaard, Susan J. Radom, Esq.; John M. Vrettos v. WindsorTerrace Condominium Assoc., Harry Ahery, Manager (PontiacRealty), Tony Barsamyan, Manager (Solomon & Rosen Realty),First Call, Inc., Daniel Fusco, Edward G.
NO. 96-5700
United States Court of Appeals,Third Circuit.
Apr 30, 1997
Appeal From: D.N.J. ,No.96-cv-01095
1
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 20, 2016
RUSSELL BROWN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Bradley County
No. 15-CR-265 Andrew Mark Freiberg, Judge
No. E2016-00437-CCA-R3-PC – Filed October 18, 2016
The petitioner, Russell Brown, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that he received the effective
assistance of trial counsel. Following our review, we affirm the denial of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.
D. Mitchell Bryant, Athens, Tennessee, for the appellant, Russell Brown.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Stephen Davis Crump, District Attorney General; and Brooklynn Townsend,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On May 21, 2013, the petitioner was convicted by a Bradley County jury of first
degree premeditated murder and aggravated arson, for which he received concurrent
sentences of life and twenty years. His convictions were affirmed by this court on direct
appeal, and our supreme court denied his application for permission to appeal. State v.
Russell Brown, No. E2013-02663-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App. Nov. 20,
2014), perm. app. denied (Tenn. Mar. 21, 2015).
Our direct appeal opinion reveals that the petitioner‟s convictions were based on
his stabbing a friend to death in a motel room and then setting fire to his bed before
fleeing. Id. at 8-10. The petitioner turned himself in to the police approximately eighteen
hours later and testified in his own defense at trial, relating the following: He and the
victim had been friends since childhood, with their friendship eventually turning into “„a
sexual relationship, based on drugs.‟” Id. at 3. The petitioner explained that he did not
consider himself a homosexual, but he engaged in sexual encounters with the victim
because he was addicted to cocaine, which the victim provided for him. Id.
On New Year‟s Eve, 2011, the petitioner and the victim purchased alcohol,
cocaine, and prescription pills and “socialized with the victim‟s roommates at his
apartment.” Id. at 3-4. At about 11:00 p.m., he and the victim checked into a motel,
where they continued to drink and use drugs. The petitioner then penetrated the victim
anally, and the victim performed fellatio on the petitioner. Id. at 4.
The petitioner testified that he never allowed the victim to penetrate him anally
because he was not a homosexual. He said that the victim was aware that he was
“„opposed‟ to that „type of relationship[.]‟” Id. That night, however, he awoke to find
the victim penetrating him anally, which enraged him. He got the victim off of him, and
the two men began a physical altercation. When he saw that a pocketknife that they had
used earlier in the evening to cut their crack cocaine was open on the nightstand, he
picked it up and stabbed the victim nineteen times. He then set fire to the bed, took the
victim‟s car, and fled the scene. Id.
On cross-examination, the petitioner claimed that the victim had informed him that
he had AIDS after letting the petitioner “perform on him, and attempting to have anal
intercourse” with the petitioner. Id. The petitioner conceded that he was larger than the
victim, that the victim was unarmed, that the fight was over when he picked up the knife
with the intent to harm the victim, and that he had intentionally set the fire. Id.
The petitioner also presented in his defense a board-certified neurologist, Dr.
Louise Ledbetter, who opined that the petitioner was “unable to make good decisions”
and “lacked the ability to premeditate” due to his intoxication from the drugs and alcohol
he had consumed that night. Id. at 5. In rebuttal, the State presented board-certified
forensic psychiatrist Dr. Jerry Glynn Newman, Jr., who opined that the petitioner had the
capacity to premeditate at the time of the murder. Id.
On June 29, 2015, the petitioner filed a pro se petition for post-conviction relief in
which he raised several claims, including ineffective assistance of trial counsel.
Specifically, he alleged that his trial counsel were ineffective for, among other things,
failing to properly investigate the case, failing to familiarize themselves with the
petitioner‟s psychiatric evaluation, failing to adequately raise the defense of self-defense,
failing to disclose a conflict of interest because of prior representation of the victim, and
2
forcing the petitioner to testify in his own defense.
Following the appointment of post-conviction counsel, an evidentiary hearing was
held on January 8, 2016. The petitioner‟s senior trial counsel, the public defender for the
10th Judicial District, testified that he was appointed to represent the petitioner while his
case was still in general sessions court. He said he was already familiar with the
petitioner because his office had represented him in other cases. Because of the severity
of the charges in the case at bar, he was assisted in his representation by an assistant
public defender, and it was the two of them who conducted the investigation of the facts
of the case.
Senior trial counsel testified that his first conversation with the petitioner occurred
at the justice center shortly after the petitioner had been arrested. The petitioner related
what had happened and “was emphatic that he was under the influence of cocaine and
other substances when the [victim] was killed.” Senior trial counsel said the petitioner
had given a statement to the Cleveland Police Department at the time of his arrest, and he
was able to obtain a copy of that videotaped statement as part of discovery. After
discussions with the petitioner and their investigation of the facts, he and junior trial
counsel formulated a defense strategy of attempting to show that the petitioner had acted
in self-defense and that he lacked the capacity to premeditate due to his voluntary
intoxication.
Senior trial counsel testified that he retained the services of Dr. Ledbetter to
review possible defenses of diminished capacity, legal insanity, and the inability to form
premeditation. He never had any doubts about the petitioner‟s mental capacity, however,
because he knew the petitioner and was unaware of his having any significant mental
health history. In addition, the intelligent petitioner had no difficulty relating what
occurred or discussing possible defenses. Before Dr. Ledbetter‟s meeting with the
petitioner, he provided her with discovery, including the victim‟s toxicology results. He
also informed the petitioner of the purpose of her visit and what questions she would be
asking. Dr. Ledbetter did not provide a written report, at senior trial counsel‟s request,
because counsel would have been required to turn over any written report to the State as
part of reciprocal discovery. The petitioner “certainly knew” the rules regarding
reciprocal discovery of reports, and there was “a meeting of the minds . . . between [the
petitioner], Dr. Ledbetter, and [himself][] concerning [Dr. Ledbetter‟s] value as a trial
witness and what [they] hoped to gain at trial from her . . . expert testimony.” Senior trial
counsel went on to explain that he called Dr. Ledbetter as an expert witness “largely on
the issue of premeditation and whether or not [the petitioner] could knowingly commit
the homicide.”
3
Senior trial counsel testified that, in response to his having engaged Dr. Ledbetter
as an expert witness, the State obtained its own expert who examined the petitioner,
prepared a report, and testified at trial to rebut Dr. Ledbetter‟s opinion regarding the
petitioner‟s inability to form the requisite intent. He and junior trial counsel discussed
the evaluation with the petitioner, and the petitioner “knew he was go[ing] to be
examined by a state expert.” Senior trial counsel stated that he withdrew his initial
objection to the introduction of the report of the State‟s expert witness because the report
basically contained just the petitioner‟s account of what had happened, including the
petitioner‟s claims of self-defense and voluntary intoxication.
Senior trial counsel testified that he did not know until the petitioner‟s post-
conviction petition that junior trial counsel had represented the victim in an earlier case.
The petitioner never mentioned his office‟s prior representation of the victim. The
petitioner also never mentioned the victim‟s having ever engaged in any violent behavior,
and the individuals who had partied with the victim and the petitioner on the night of the
homicide reported to counsel that the two men had been friendly toward each other that
night. In addition, he could not recall from the victim‟s criminal history, which he and
junior trial counsel reviewed before trial, that the victim had any convictions for crimes
of violence.
Senior trial counsel testified that he had a number of discussions with the
petitioner about testifying, including the advantages versus disadvantages of the
petitioner‟s taking the stand. However, because the State had made it clear to him that it
did not intend to introduce the petitioner‟s self-serving statement to police, and there had
been no blood drawn on the petitioner to show his level of intoxication, he encouraged
the petitioner to testify to present his defenses of self-defense and voluntary intoxication:
But going into the trial, [the prosecutor] had made it clear to me he was not
putting that statement in, so I do recall talking to [the petitioner] and
encouraging him that he needed to testify if the defense is self-defense, for
us to have a defense in this case. It was important. Certainly when we‟re
using that expert, Dr. . . . Ledbetter, to talk about intoxication, that he
would have to testify because . . . there was no blood drawn on [the
petitioner] at the time he was arrested to show that there was anything in his
system. All these results were from [the victim]. Dr. Ledbetter had
certainly reviewed all that crime scene evidence, all of that, but obviously
she spoke at length with [the petitioner] about what had occurred, how it
occurred, substances that had been consumed, so I certainly thought it was
important based on the fact that we‟re going forward with voluntary
intoxication to negate premeditation, that we‟ve got a defense of self-
defense and he needed to testify.
4
Senior trial counsel testified that he and the petitioner talked at length about how
“sordid” the facts were and how it was “a very difficult case.” He said he prepared the
petitioner for both his direct and cross-examination testimony, and the petitioner was
always consistent in his account of what occurred and that he had been under the
influence of intoxicants and had acted in self-defense. Senior trial counsel testified he
believed they put on adequate proof at trial for a jury instruction on self-defense, but the
trial court refused his request for that instruction.
Senior trial counsel acknowledged that the petitioner expressed some
dissatisfaction with his representation, filing pro se motions to have him relieved as his
counsel and a complaint against him with the Board of Professional Responsibility. He
said that the petitioner raised his concerns before the trial court prior to trial and that they
attempted to resolve the matters. Overall, he and the petitioner “got along fine.” He felt
no animosity toward the petitioner, and the petitioner never expressed any animosity
toward him. He could not recall the petitioner‟s having made a complaint about not
wanting to testify in the case.
Junior trial counsel testified that the petitioner never told him that he had
represented the victim on a sale and delivery of cocaine charge and that he was not aware
of that fact until he learned of the allegations in the post-conviction petition and looked
into the matter. He said he had researched the victim‟s criminal history before trial, but
only in terms of trying to find “some type of assaultive behavior” on the part of the
victim. On cross-examination, junior trial counsel testified that he looked only at the list
of the victim‟s convictions when checking his record; he did not pull the judgments in
order to see who represented the victim in each case.
The petitioner testified that he believed the trial judge “would have been obligated
. . . to charge the jury with a self-defense instruction” had counsel presented his case
differently. He said that counsel, who met with him five to seven times for an hour each
time, never discussed a defense of self-defense but instead only voluntary intoxication.
Counsel did not inform him, however, that voluntary intoxication is not in and of itself a
defense. The petitioner stated that he was “very adamant” about not testifying because he
believed it would be “detrimental to [his] well[-]being[.]” He said he felt no confidence
in his ability to testify, but counsel told him that if he did not testify, Dr. Ledbetter would
be unable to testify regarding the voluntary intoxication and premeditation issues.
According to the petitioner, this information was “a convincing factor” in his decision to
testify.
The petitioner testified that he was not properly prepared for his testimony
“because it was a last minute decision” and that “most of the prepping” consisted of
5
counsel “just asking [him] about the events that occurred that night.” He said he was
prepared for his examination with Dr. Ledbetter, but counsel never told him that he
would be examined by the State‟s expert and did not prepare him for that examination.
The petitioner testified that during one of junior trial counsel‟s visits with him,
junior trial counsel kept referring to the victim by his first name, which seemed to
indicate counsel had some personal knowledge of the victim, so he asked junior trial
counsel about it, and junior trial counsel “brought [his previous representation of the
victim] to [the petitioner‟s] attention.” The petitioner said that he had an issue with that
fact, so he brought it to senior trial counsel‟s attention by notifying him of it in a letter.
He also expressed his concerns to junior trial counsel. Both senior and junior trial
counsel, however, “pretty much brushed it off.”
The petitioner also complained that trial counsel did not subpoena as witnesses the
individuals who had been at the party on the night of the victim‟s death, who, according
to the petitioner, could have testified that the victim was “an aggressive individual” and
“a known fighter.” Finally, the petitioner testified that he felt as if trial counsel‟s
representation was “kind of . . . mechanical” and that he was not satisfied with the public
defender‟s office from the beginning because he had “never had a positive experience
with them.”
Upon questioning by the post-conviction court, the petitioner acknowledged that
evidence was brought before the jury about the statement of one of the New Year‟s Eve
party attendees that the petitioner appeared impaired at the party. He further
acknowledged that trial counsel vigorously questioned the State‟s witnesses about why
the petitioner‟s blood was not tested and a rape kit was not performed on him.
On January 26, 2016, the post-conviction court entered a detailed and lengthy
written order denying the petition on the basis that the petitioner had waived all his
claims other than those relating to ineffective assistance of counsel and that the “proof
necessary to support [his] post-conviction claims [of ineffective assistance] was wholly
lacking.” Thereafter, the petitioner filed a timely appeal to this court.
ANALYSIS
The petitioner argues on appeal that trial counsel made a number of errors in
representation, the cumulative effect of which was to deprive him of the effective
assistance of counsel and a fair trial. Specifically, he argues that counsel were deficient
for not subpoenaing witnesses who could have given testimony about the victim‟s violent
nature to support a jury instruction on self-defense; for not adequately meeting with him
before trial; for not preparing him for the examination by the State‟s expert witness or
6
attending his meeting with the expert; for not preparing him to testify in his own defense,
which resulted in his being “forced into testifying at the last minute”; and for not
addressing the concerns he raised prior to trial about junior trial counsel‟s having
represented the victim in the past. The State responds by arguing that the post-conviction
court properly found that trial counsel‟s performance was not deficient. We agree with
the State.
The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court‟s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court‟s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).
To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel‟s performance was deficient and that counsel‟s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App.1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:
First, the defendant must show that counsel‟s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel‟s
errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel‟s
acts or omissions were so serious as to fall below an objective standard of reasonableness
7
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1 975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome” that “but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).
In finding that the petitioner failed to meet his burden of demonstrating ineffective
assistance of counsel, the post-conviction court, among other things, specifically
accredited the testimony of both trial counsel, resolving “[a]ny and all disputes and
conflicts in the proof and testimony” against the petitioner. After reviewing some of the
overwhelmingly negative facts of the case, the court found that, “[d]espite th[e] mountain
of proof pointing to the [p]etitioner‟s guilt, [senior trial counsel] formulated a cogent
defense trial strategy” and engaged in “a valiant effort” to mitigate the petitioner‟s
conduct by focusing the jury‟s attention on those facts that supported the petitioner‟s
defenses of self-defense and voluntary intoxication. In sum, the court concluded that trial
counsel “represented the [p]etitioner in an exceptional manner under very difficult
circumstances.”
The record fully supports the findings and conclusions of the post-conviction
court. The testimony of senior trial counsel, an experienced defense attorney,
established, among other things: that he conducted a thorough investigation of the facts,
including whether the victim had any previous history of violent acts or violent crimes;
spoke at great length with the petitioner about the case, including whether or not the
petitioner should testify in his own defense; spoke with and prepared the petitioner for his
examination by the expert witnesses; prepared the petitioner for his direct and cross-
examination testimony; and was completely unaware of the fact that his office had
previously represented the victim in a drug case. Junior trial counsel‟s testimony also
established that he had no memory or awareness of having represented the victim until he
learned of the allegations in the post-conviction petition and reviewed the records.
As for the petitioner‟s claim that trial counsel should have called witnesses to
testify about the victim‟s violent nature, we note that the petitioner did not present those
alleged witnesses at the evidentiary hearing. In order to succeed on a claim that counsel
did not properly investigate or call favorable witnesses at trial, a petitioner must generally
8
elicit favorable testimony from those witnesses at the evidentiary hearing, as a post-
conviction court may not speculate “on the question of . . . what a witness‟s testimony
might have been if introduced” at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). Accordingly, we affirm the judgment of the post-conviction court
denying the petition.
CONCLUSION
Based on the foregoing authorities and reasoning, we conclude that the petitioner
has not met his burden of showing that he was denied the effective assistance of counsel.
Accordingly, we affirm the denial of the petition for post-conviction relief.
_________________________________
ALAN E. GLENN, JUDGE
9
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER WITHDRAWING MEDIATION ORDER
Cause number: 01-15-00863-CV
Style: Elizabeth Thomas v. Meritage Homes of Texas LLC. f/k/a Meritage
Homes of Texas L.P., f/k/a Legacy Monterey Homes L.P. MTH Lending Group L.P., f/k/a
Meritage Lending Service Primary Residential Mortgage Inc., d/b/a f/k/a Flagstone Lending
Group Stewart Title Company, MTH Ti
Date motion filed: November 12, 2015
Type of Motion: Objection to Mediation
Party filing motion: Appellee
It is ordered that Appellee’s objection to mediation is granted. We withdraw our
Mediation Order dated November 5, 2015.
Judge’s Signature: /s/ Sherry Radack
x Acting Individually
Date: November 18, 2015
*
Absent emergency or a statement that the motion is unopposed, must wait ten days before acting on motion except for
motion to extend time to file a brief. See TEX. R. APP. P. 10.3(a).
Note: Single justice may grant or deny any request for relief properly sought by motion, except in a civil case a single justice
should not: (1) act on a petition for an extraordinary writ or (2) dismiss or otherwise determine an appeal or a motion
for rehearing. TEX. R. APP. P. 10.4(a).
| {
"pile_set_name": "FreeLaw"
} |
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BONNIE PENDERGAST, Plaintiff/Appellee,
v.
ARIZONA STATE RETIREMENT SYSTEM, an agency of the State of
Arizona, Defendant/Appellant.
No. 1 CA-CV 13-0244
FILED 5-1-2014
Appeal from the Superior Court in Maricopa County
No. LC2012-000596
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL
Snell & Wilmer, LLP, Phoenix
By Joshua Grabel, Adam E. Lang, and Martha E. Gibbs
Counsel for Plaintiff/Appellee
Arizona Attorney General’s Office, Phoenix
By Jothi Beljan
Counsel for Defendant/Appellant
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
PENDERGAST v. ASRS
Opinion of the Court
W I N T H R O P, Judge:
¶1 The Arizona State Retirement System (“ASRS”) appeals the
decision of the superior court finding the 2011 legislative amendment to
the public service credit purchase program violated ASRS member Bonnie
Pendergast’s constitutional rights. We affirm because the public service
credit purchase program was a public retirement system benefit when the
voters passed Article 29, Section 1(C) of the Arizona Constitution,
Pendergast’s eligibility under the program is therefore constitutionally
protected from diminishment, and the 2011 legislative amendment
unconstitutionally diminishes her vested rights to public retirement
system benefits under the program.
FACTS AND PROCEDURAL HISTORY
I. The Parties
¶2 ASRS is a defined benefit retirement plan for public
employees. See Arizona Revised Statutes (“A.R.S.”) section 38-712 (West
2014). 1 Members of the plan include employees of the State of Arizona
and participating Arizona political subdivisions. A.R.S. § 38-711(13);
A.R.S. § 38-727(A). A member qualifies for monthly pension benefits
through ASRS upon reaching a combination of age and years of credited
service. See A.R.S. § 38-711(27)(a). For a member who joined ASRS prior
to July 1, 2011, “normal retirement” may begin upon (a) a member’s sixty-
fifth birthday, (b) a member’s sixty-second birthday and completion of at
least ten years of credited service, or (c) the first day that the sum of a
member’s age and years of credited service reaches the number eighty.
A.R.S. § 38-711(27)(a).
¶3 Bonnie Pendergast became a member of ASRS in 1984 when
she began teaching in the Mesa Public School System. In 1996, Pendergast
moved to Minnesota where she taught until 2006, when she returned to
Arizona and resumed teaching here. She has remained a member of ASRS
from 1984 until the present.
1 We cite the current Westlaw version of the applicable statutes and
constitutional provisions because no revisions material to this decision
have since occurred.
2
PENDERGAST v. ASRS
Opinion of the Court
II. The Public Service Credit Purchase Program
¶4 The public service credit purchase program (“the Program”)
is codified at A.R.S. § 38-743. Established in 1987, the Program initially
applied to teachers and school administrators who had been teachers or
school administrators in another state. See 1987 Ariz. Sess. Laws, ch. 182,
§ 1 (1st Reg. Sess.). Under the Program, qualifying ASRS members could
purchase up to five years of credited service earned through previous out-
of-state employment by paying the actuarial present value of such
benefits. 1987 Ariz. Sess. Laws ch. 182, § 1 (1st Reg. Sess.). By purchasing
such credited service, active members could accelerate their ability to
retire with full benefits. 2
¶5 Over the next decade, the legislature expanded the Program.
Relevant to this appeal, in 1996 the legislature removed the maximum
credited service purchase limit of five years, allowing active members to
purchase an unlimited number of credits corresponding to their out-of-
state service, and changed the purchase cost from the actuarial present
value of the benefits to the present normal cost. 1996 Ariz. Sess. Laws, ch.
185, § 9 (2d Reg. Sess.).
¶6 In 2004, the legislature returned the purchase price of
credited service to the actuarial present value. 2004 Ariz. Sess. Laws, ch.
252, § 1 (2d Reg. Sess.). Five years later, the legislature limited the
Program by requiring members to earn at least five years of credited
service in ASRS before being eligible to participate in the Program. 2009
Ariz. Sess. Laws, ch. 36, § 5 (1st Reg. Sess.). Recently, and most relevant to
this appeal, the legislature reinstated the five year limit on the amount of
out-of-state service eligible for purchase under the Program. See 2011
Ariz. Sess. Laws, ch. 357, § 5 (1st Reg. Sess.).
2 “Credited service” is defined as “the number of years standing to
the [ASRS] member’s credit on the books of ASRS during which the
member made the required contributions,” A.R.S. § 38-711(9), and is used
to calculate the ASRS member’s retirement benefits, see A.R.S. § 38-757
(normal retirement); A.R.S. § 38-758 (early retirement); A.R.S. § 38-759
(late retirement); A.R.S. § 38-768 (minimum retirement benefit).
3
PENDERGAST v. ASRS
Opinion of the Court
¶7 In its present form, the legislation enabling the Program
provides:
A. If an active member of ASRS or a member who is
receiving benefits pursuant to § 38-797.07 was previously
employed by the United States government, a state, territory,
commonwealth, overseas possession or insular area of the
United States or a political subdivision of a state, territory,
commonwealth, overseas possession or insular area of the
United States, excluding any time worked for a prison while
the member was incarcerated, the member may receive up to
sixty months of credited service for this prior employment if
the member pays into ASRS the amount prescribed in
subsection B of this section.
B. A member who elects to receive credit for service with
the United States government, a state, territory,
commonwealth, overseas possession or insular area of the
United States or a political subdivision of a state, territory,
commonwealth, overseas possession or insular area of the
United States shall pay to ASRS an amount equal to the
present value of the additional benefit that is derived from
the purchased credited service using the actuarial
assumptions that are approved by the board.
C. A member who previously was a member of another
public employee retirement system and who receives or is
eligible to receive retirement benefits from that system for
any period of employment is ineligible to receive retirement
benefits from ASRS for the same period.
D. A member shall have at least five years of credited
service in ASRS before electing to receive credit for service
pursuant to this section.
A.R.S. § 38-743.
¶8 From an ASRS member’s perspective, the advantages of
purchasing credited service through the Program are two-fold. First,
purchasing credited service enables a member to reduce the length of time
the member must work as an employee of the State before satisfying the
so-called Rule of 80 and retiring with full retirement benefits. See A.R.S.
§ 38-711 (defining “normal retirement date”); A.R.S. § 38-757(B)
(explaining calculation of “monthly life annuity” at “normal retirement”).
4
PENDERGAST v. ASRS
Opinion of the Court
Second, purchasing credited service through the Program allows an ASRS
member to consolidate retirement benefits from previous government
employment into one account with ASRS.
III. Procedural History
¶9 In March 2012, Pendergast contacted ASRS to purchase 9.89
years of credited service related to her public employment in Minnesota.
ASRS responded that she could only purchase up to five years of credited
service through the Program under the current version of A.R.S. § 38-743.
Later that month, Pendergast appealed the decision with ASRS, but ASRS
denied her appeal. After exhausting her administrative remedies,
Pendergast filed a complaint for judicial review in superior court. After
briefing and oral argument, the superior court found ASRS’s decision to
apply A.R.S. § 38-743 as amended to Pendergast violated Pendergast’s
constitutional rights pursuant to the Arizona Constitution, Article 29,
Section 1. ASRS has appealed that determination. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9 and
A.R.S. § 12-2101(A)(1).
ANALYSIS
¶10 Reviewing an administrative appeal, a superior court “may
affirm, reverse, modify or vacate and remand the agency action.” A.R.S.
§ 12-910(E). “On appeal, we review de novo the superior court’s
judgment, reaching the same underlying issue as the superior court:
whether the administrative action was not supported by substantial
evidence or was illegal, arbitrary and capricious, or involved an abuse of
discretion.” Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13, 153
P.3d 1055, 1059 (App. 2007).
I. Yeazell and Article 29, Section 1(C) of the Arizona Constitution
¶11 Beginning with Yeazell v. Copins, 98 Ariz. 109, 402 P.2d 541
(1965), Arizona courts have recognized a “contract theory of retirement
benefits.” Norton v. Ariz. Dep’t of Pub. Safety Local Ret. Bd., 150 Ariz. 303,
306, 723 P.2d 652, 655 (1986).
Under that theory, the State’s promise to pay retirement
benefits is part of its contract with the employee; by
accepting the job and continuing work, the employee has
accepted the State’s offer of retirement benefits, and the State
may not impair or abrogate that contract without offering
consideration and obtaining the consent of the employee.
5
PENDERGAST v. ASRS
Opinion of the Court
Proksa v. Ariz. State Sch. for the Deaf & the Blind, 205 Ariz. 627, 630, ¶ 16, 74
P.3d 939, 942 (2003) (citations omitted); see also Yeazell, 98 Ariz. at 115, 402
P.2d at 545 (“[T]he right to a pension becomes vested upon acceptance of
employment.”). Interpreting Yeazell, our supreme court has held “when
[an] amendment [to the contract] is beneficial to the employee . . . , it
automatically becomes part of the contract by reason of the presumption
of acceptance.” Thurston v. Judges’ Ret. Plan, 179 Ariz. 49, 51, 876 P.2d 545,
547 (1994).
¶12 In 1998, Arizona voters elevated the protections recognized
in Yeazell to the level of constitutional command with the passage of
Proposition 100. Today enshrined as Article 29, Section 1(C) of the
Arizona Constitution, that provision states: “Membership in a public
retirement system is a contractual relationship that is subject to article II,
§ 25, and public retirement system benefits shall not be diminished or
impaired.” Under Article 29, Section 1(C), “The Contract Clause applies
to the general contract provisions of a public retirement plan, while the
Pension Clause applies only to public retirement benefits. Therefore, the
Pension Clause confers additional, independent protection for public
retirement benefits separate and distinct from the protection afforded by
the Contract Clause.” Fields v. Elected Officials’ Ret. Plan, CV-13-0005-T-AP,
slip op. at ¶ 17, 2014 WL 644467, at *4 (Ariz. Feb. 20, 2014) (emphasis
added).
¶13 Given the additional protection afforded public retirement
system benefits, we first determine whether purchasing credited service
through the Program qualifies as a public retirement system benefit under
the Pension Clause. If purchasing credited service through the Program
qualifies as such a benefit, then we must determine whether the 2011
legislative amendment to the Program unconstitutionally diminishes or
impairs Pendergast’s vested benefit.
A. Pension Clause Analysis
¶14 To determine whether purchasing credited service through
the Program is a public retirement system benefit protected by Article 29,
Section 1(C), we will not utilize the parties’ equally plausible dictionary
definitions of “benefit.” See Fields, CV-13-0005-T-AP, slip op. at ¶ 21, 2014
WL 644467, at *4 (“We think the dictionary definitions do not determine
the meaning of ‘benefit’ as used in the Pension Clause.”). Nor will we rely
on our pre-Article 29 case law for guidance on this definition. See id. at ¶
19 (“Neither the Arizona Constitution nor Arizona case law defines
‘benefit.’”). Instead, to determine whether “benefit” encompasses the
6
PENDERGAST v. ASRS
Opinion of the Court
ability to purchase credited service through the Program, we look to the
history of the Pension Clause and the statutory scheme in existence when
the voters passed Proposition 100. See id. at ¶ 21-24.
1. “Public Retirement System Benefit”
¶15 The eleven-year history of the Program prior to the 1998
passage of Proposition 100 confirms that the ability to purchase credited
service through the Program is a public retirement system benefit. The
legislature initially established the Program in 1987 for teachers and
school administrators. 1987 Ariz. Sess. Laws, ch. 182, § 1 (1st Reg. Sess.). 3
In 1994, a legislative amendment to A.R.S. § 38-743 extended eligibility for
the Program to professors and instructors at public universities and
community colleges. See 1994 Ariz. Sess. Laws, ch. 356, § 18 (2d Reg.
Sess.). 4 In 1996, the legislature further expanded the scope of the program
3 Pursuant to the original program,
A. At the time of retirement a teacher or administrator of a
school district who is an active member of the plan or system
and who previously was a member of a public employee
retirement system in another state while employed as a
teacher or school administrator and is not receiving
retirement benefits as a result of that employment may
receive up to five years of service credit for this prior
employment if the teacher or administrator pays into the
system the amount prescribed in subsection B.
B. A teacher or administrator electing to receive credit for
service outside this state shall pay to the system the amount
equal to the increase in the actuarial present value of benefits
computed at the time of retirement which results from
adding the number of years or partial years of credited
service received under subsection A.
1987 Ariz. Sess. Laws, ch. 182, § 1 (1st Reg. Sess.).
4 The 1994 legislation did not affect the five-year cap on prior public
service credit eligible for purchase or the payment at retirement based on
actuarial present value. In 1995, amendments to A.R.S. § 38-743 removed
the requirement that a member’s payment into the program be computed
at the time of retirement and added subsection C to clarify that members
7
PENDERGAST v. ASRS
Opinion of the Court
by (a) opening the program to all active ASRS members, (b) predicating
payment for the credited service on normal cost rate rather than actuarial
present value, and (c) removing the five-year cap on prior public service
eligible for purchase. See 1996 Ariz. Sess. Laws, ch. 185, § 9 (2d Reg. Sess.).
With this statutory scheme in place, the voters approved Proposition 100
in 1998.
¶16 One aspect of this statutory scheme, however, appears to
suggest that the Program is not included among the public retirement
system benefits protected by the Pension Clause; the legislature’s use of
“may” in A.R.S. § 38-743(A) could indicate the legislature intended to
reserve for itself the power to modify the Program. See A.R.S. § 38-743(A)
(1996) (ASRS member “may receive up to five years of service credit for . . .
prior employment” if the member pays ASRS the normal cost rate of the
retirement benefits (emphasis added)). 5 “May” is not defined in the
statute. “When a word or phrase in a statute is undefined, we must give
participating in the program could not also receive retirement benefits
from the out-of-state retirement system for the same years. See 1995 Ariz.
Legis. Serv., ch. 134, § 5 (1st Reg. Sess.).
5 Although not directly raised on appeal by ASRS, the sunset clause
attached to the entire Arizona State Retirement System also suggests the
legislature has retained the power to modify or even eliminate the
Program as a part of the retirement system. See A.R.S. § 41-3016.19.
Although the absence of a sunset clause can indicate that the statute is
among the public retirement system benefits protected by Article 29,
Section 1(C), see Fields, CV-13-0005-T-AP, slip op. at ¶ 23, 2014 WL 644467,
at *5, we would disagree with any argument that the presence of a sunset
clause necessarily precludes constitutional protection of a part of the
retirement system. Nothing in the history of the Pension Clause suggests
it should be so limited. Cf. id. at ¶ 28 (“[U]nlike narrower protections
found in other states’ constitutions, the protection afforded by the Arizona
Pension Clause extends broadly and unqualifiedly to ‘public retirement
system benefits,’ not merely benefits that have ‘accrued’ or been ‘earned’
or ‘paid.’” (citations omitted)). Without deciding the effect of the sunset
clause on the other provisions of Title 38, Chapter 5, Article 2, we
conclude the existence of a sunset clause does not undermine our
conclusion that the constitutional guarantee of the Pension Clause protects
an ASRS member’s ability to purchase credited service through the
Program.
8
PENDERGAST v. ASRS
Opinion of the Court
the words their ordinary meanings . . . .” Loftus v. Ariz. State Univ. Pub.
Safety Pers. Ret. Sys. Local Bd., 227 Ariz. 216, 222-23, ¶ 27, 255 P.3d 1020,
1026-27 (App. 2011) (citing A.R.S. § 1-213). We derive a word’s ordinary
meaning by reference to a dictionary. See State v. Wise, 137 Ariz. 468, 470
n.3, 671 P.2d 909, 911 n.3 (1983). “If the language is clear and
unambiguous, there is usually no need to resort to the rules of statutory
interpretation.” Special Fund Div. v. Indus. Comm’n of Ariz., 232 Ariz. 110,
113, ¶ 12, 302 P.3d 635, 638 (App. 2013).
¶17 Black’s Law Dictionary provides two plausible definitions
for “may” in this context: (1) “[t]o be permitted to” and (2) “[t]o be a
possibility . . . Cf. can.” Black’s Law Dictionary 1062 (9th ed. 2009). The
difference in these two definitions illustrates the two actors potentially
capable of decision-making under the statute: the legislature or the
member. If the legislature intended the first definition, then the statute
granted ASRS members the ability to purchase credited service under the
Program only with the legislature’s permission, indicating the legislature
sought to reserve for itself the power to revoke that permission and
modify the Program. 6 If the legislature intended the second definition,
then the statute granted ASRS members the possibility of participating in
the Program by their own choice, indicating the Program is among the
retirement system benefits protected under Article 29, Section 1(C). Cf.
Yeazell, 98 Ariz. at 114, 402 P.2d at 544 (“That an applicant for retirement
may not earn the right to benefits because he does not perform the
condition does not mean that from the moment of entrance into the
service of [the government] as a [public employee] there is not a firm,
binding contract.”).
¶18 When the language of a statute is ambiguous, “[t]he intent of
the legislature . . . may be gathered from statutes relating to the same
subject matter—statutes in pari materia.” Frazier v. Terrill, 65 Ariz. 131,
135, 175 P.2d 438, 441 (1946). Considering other statutes in Title 38,
6 Supporting this argument, the legislature’s use of “may” in A.R.S.
§ 38-743(A) contrasts with its use of “is entitled” in the formula-based
benefit increase statute at issue in Fields. Compare A.R.S. § 38-743(A) (1996)
with A.R.S § 38-818(A) (“[E]ach retired member or survivor of a retired
member is entitled to receive a permanent increase in the base benefit
equal to the amount determined pursuant to this section” if one of two
conditions are met (emphasis added)); see also Black’s Law Dictionary 612
(9th ed. 2009) (defining “entitle” as “[t]o grant a legal right to or qualify
for.”).
9
PENDERGAST v. ASRS
Opinion of the Court
Chapter 5, we conclude in this instance the legislature intended “may” to
mean “[t]o be a possibility” or “can”; in these statutes, “may” indicates the
member is afforded the choice of exercising benefits. See, e.g., A.R.S. § 38-
757(A) (“After application on a form prescribed by the director, [an ASRS]
member may retire on reaching the member’s normal retirement date.”
(emphasis added)); A.R.S. § 38-885(A) (“A member [of the Corrections
Officer Retirement Plan] may retire if the member” satisfies certain
conditions (emphasis added)); A.R.S. § 38-805(C) (“A member [of the
Elected Officials’ Retirement Plan] . . . who has at least five years of
credited service and who ceases to hold office as an elected official may
take early retirement.” (emphasis added)). Further, applying a legislative-
permissive definition of “may” in the context of the public retirement
system would also jeopardize other basic retirement benefits integral to
the public retirement system by leading to the impermissible result that a
member’s ability to obtain retirement benefits is contingent on future
permission by the legislature rather than on the terms of the contract
accepted at employment. Cf. Proksa, 205 Ariz. at 630, ¶ 16, 74 P.3d at 942
(“[B]y accepting the job and continuing work, the employee has accepted
the State’s offer of retirement benefits, and the State may not impair or
abrogate that contract without offering consideration and obtaining the
consent of the employee.” (emphasis added) (citations omitted)). “If a
literal interpretation of statutory language leads to an absurd result, the
court has a duty to construe it, if possible, so that it is reasonable and
workable.” State Farm Auto. Ins. Co. v. Dressler, 153 Ariz. 527, 531, 738 P.2d
1134, 1138 (App. 1987) (citations omitted); see also A.R.S. § 1-211(B)
(“Statutes shall be liberally construed to effect their objects and to promote
justice.”).
¶19 Finally, construing the ambiguity in “may” in § 38-743(A)
against an ASRS member would be incongruent with the robust
contractual theory of public retirement system benefits recognized by
Yeazell and confirmed by Article 29, Section 1(C). See Fields, CV-13-0005-T-
AP, slip op. at ¶ 28, 2014 WL 644467, at *6. “[A]s with all contracts, if the
meaning of a[] . . . provision remains uncertain after consideration of the
parties’ intentions, as reflected by their language in view of surrounding
circumstances, a secondary rule of construction requires the provision to
be construed against the drafter.” MT Builders, L.L.C. v. Fisher Roofing, Inc.,
219 Ariz. 297, 302, ¶ 10, 197 P.3d 758, 763 (App. 2008) (citations omitted).
Therefore, in the context of public retirement system benefits, we conclude
the legislature intended the word “may” to grant members the possibility
of participating in the Program on their own initiative, rather than
impliedly reserving for the legislature the power to limit the terms of the
Program.
10
PENDERGAST v. ASRS
Opinion of the Court
¶20 Because the Program was among the statutorily identified
public retirement system benefits in existence in 1998, we conclude the
term “benefits” in the Pension Clause encompasses a member’s ability to
purchase credited service through the Program. 7
2. “Diminishe[s] or Impair[s]” a Benefit
¶21 Turning to the effect of the 2011 legislative amendment of
the Program, we conclude the legislation unconstitutionally diminishes an
ASRS member’s public retirement system benefits by reducing the amount
of prior public service available for purchase as credited service.8
Pursuant to Article 29, Section 1(C), “public retirement system benefits
shall not be diminished or impaired.” In this case, if the 2011 legislative
amendment had not been enacted, Pendergast could have purchased all
9.89 years of prior public service. By capping the amount of prior public
service eligible for purchase, the legislation directly diminishes
Pendergast’s ability to purchase an unlimited amount of credited service
pursuant to the version of the Program in existence when the voters
passed Proposition 100. Therefore, Pendergast is eligible to purchase 9.89
years of credited service because she was an active member of ASRS in
1998, and the 1998 version of the Program did not limit the amount of
prior public service an active ASRS member could purchase as credited
service.
B. Contract Clause Analysis
¶22 We need not conduct an analysis of the 2011 legislative
amendment under the Contract Clause of Article 29, Section 1(C) because,
7 Our conclusion is supported by Buddell v. Bd. of Trs., State Univ. Ret.
Sys. of Ill., 514 N.E.2d 184 (Ill. 1987) (holding retirement system member’s
right to purchase credited military service was constitutionally protected
retirement system benefit). See Fields, CV-13-0005-T-AP, slip op. at ¶ 28,
2014 WL 644467, at *6 (“This definition of ‘benefit’ also comports with the
use of the term in other states that have similar constitutional provisions
protecting public pension benefits.” (citing with approval Miller v. Ret. Bd.
of Policemen’s Annuity, 771 N.E.2d 431, 444 (Ill. App. Ct. 2001))).
8 We note the only change from the 1998 version to the 2011 version
of A.R.S. § 38-743 before us is the limit on the amount of prior public
service available for purchase as credited service into a member’s ASRS
account.
11
PENDERGAST v. ASRS
Opinion of the Court
as discussed above, the Pension Clause provides additional, independent
protection to the public retirement system benefit at issue in this appeal.
II. Attorneys’ Fees on Appeal
¶23 On appeal, we award Pendergast her costs and reasonable
attorneys’ fees pursuant to A.R.S. § 12-341.01(A), contingent upon
compliance with ARCAP 21, because this matter arises out of contract.
CONCLUSION
¶24 We conclude that the 2011 legislative amendment to the
public service credit purchase program unconstitutionally diminishes and
impairs the public retirement system benefits of an ASRS participant who
became a member before the legislative amendment took effect. As a
result, we affirm the trial court’s determination that Pendergast is eligible
to purchase up to 9.89 years of credited service pursuant to the public
service credit purchase program as it existed in 1998.
:MJT
12
| {
"pile_set_name": "FreeLaw"
} |
986 So.2d 616 (2008)
WOODING
v.
STATE.
No. 3D08-919.
District Court of Appeal of Florida, Third District.
July 11, 2008.
Decision without published opinion. Proh.denied.
| {
"pile_set_name": "FreeLaw"
} |
958 F.2d 1537
Prod.Liab.Rep. (CCH) P 13,150Gregory S. GOREE, Plaintiff-Appellant,Renee Goree, Plaintiff,v.WINNEBAGO INDUSTRIES, INC., Defendant-Appellee,General Motors Corporation, Chevrolet Motor Division, acorporation, Defendants.
No. 91-7121.
United States Court of Appeals,Eleventh Circuit.
April 22, 1992.
David McCall Andres, Tuscaloosa, Ala., for plaintiff-appellant.
Samuel H. Franklin, Mac M. Moorer, Lightfoot, Franklin, White & Lucas, Birmingham, Ala., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, Circuit Judge, and HENDERSON and CLARK*, Senior Circuit Judges.
PER CURIAM:
1
The plaintiff-appellant, Gregory S. Goree, filed this action for damages pursuant to the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") against Winnebago Industries, Inc. ("Winnebago") for burns suffered to his feet while driving his Winnebago motor home. Following the close of discovery, the United States District Court for the Northern District of Alabama granted summary judgment in favor of Winnebago and entered final judgment on its behalf. On appeal, Goree contends that the court erred by concluding that (1) he could not establish liability under the AEMLD without first presenting expert testimony to prove the existence of a defect in the product, (2) because he was a paraplegic and had no feeling in his feet, he was not an "ordinary consumer" of the motor home within the meaning of Alabama law, and (3) the installation of hand controls to the motor home constituted a substantial modification of the vehicle so as to remove Goree's injury from the scope of Winnebago's liability. We conclude that there remain genuine issues of material fact that must be resolved by a jury, and therefore reverse the district court's grant of summary judgment.
2
An order granting summary judgment is subject to independent review on appeal. Thrasher v. State Farm Fire and Casualty Co., 734 F.2d 637 (11th Cir.1984). The party moving for summary judgment bears the initial burden of "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any ...' " which show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). Summary judgment is then appropriate as a matter of law against the nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. In reviewing whether the nonmoving party has met his burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-9, 90 S.Ct. 1598, 1608-9, 26 L.Ed.2d 142 (1970)).
I.
3
The motor home that is the subject matter of this litigation is a 1988 Winnebago Chieftain. General Motors Corporation ("General Motors") manufactured the Chieftain's chassis, which includes the frame rails, engine, transmission, wheels, tires and steering column, and sold the chassis to Winnebago. Winnebago completed the motor home by installing the body of the vehicle, including a steel floorboard underneath the driver's seat and carpeting on top of the floorboard. General Motors was not responsible for the design, manufacture or installation of the Chieftain's body.
4
Goree purchased the Chieftain as a used vehicle from the original purchaser in early 1989. Being a paraplegic, Goree installed hand controls to enable him to operate the motor home. On July 29, 1989, he drove the Chieftain, without wearing shoes, on a six hour trip from Memphis to Nashville, Tennessee. The floorboard became so hot that he suffered second and third degree burns to his right heel during the trip. He underwent successful skin graft surgery to treat the burns two weeks later.
5
Goree filed suit against General Motors and Winnebago on February 7, 1990. His complaint alleged, inter alia, that the Chieftain was defective under the AEMLD. During discovery, he identified two expert witnesses expected to testify on his behalf at trial. Both defendants deposed each witness. The first witness, Dr. Walter Schaetzle, an engineering expert, testified that his measurements of the floorboard temperatures of Goree's Chieftain were as high as one hundred and seventy-five degrees Fahrenheit above the carpeting on the driver's side. In his opinion, the installation of a heat shield between the exhaust manifold and the floorboard would lower the floorboard temperature between twenty and forty degrees, and that the cost of such a heat shield would be less than twenty-five dollars. The second expert witness, Dr. Blair Behringer, is an orthopaedic surgeon. He stated that temperatures between one hundred and eight and one hundred and ten degrees Fahrenheit will cause burn injuries to a person's foot if it is exposed to sustained heat radiation of that magnitude for a sufficient period of time. Dr. Behringer noted that a person with normal sensation to heat would probably not maintain contact with such an uncomfortably hot object long enough to incur a serious burn injury. However, he went on to state that the requisite length of exposure sufficient to sustain a burn injury decreases as the subject temperature rises. A long exposure to a relatively low temperature can cause a burn injury just as can a short exposure to a high temperature. Additionally, Dr. Behringer explained that an injury can occur at a low temperature even though the victim is not initially aware of it. In his judgment, the time it takes for a person with normal sensation to heat to incur a burn is the same as for a person, such as a paraplegic, with no sensibility to heat.
6
After discovery, General Motors and Winnebago each moved for summary judgment. The district court granted their motions on three grounds. First, the court held that Goree had failed to produce any expert testimony that the Chieftain was defective, and therefore could not establish a prima facie case under the AEMLD. Second, it found as a matter of law that the Chieftain was not defective because it was safe for its intended use by an ordinary consumer who could sense heat. The court held that the Chieftain was never intended to be used by a paraplegic who was not wearing shoes. Finally, the court held as a matter of law that the motor home had been substantially modified by the installation of the hand controls, and that his injuries would not have occurred but for this modification. Goree appeals only the district court judgment in favor of Winnebago. Consequently, General Motors is not a party to this appeal.
II.
7
The AEMLD is a judicially developed products liability doctrine. See Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981); Casrell v. Altec Indus., Inc., 335 So.2d 128 (Ala.1976). It is a modified version of strict liability that premises liability upon the sale by a manufacturer of a defective product. To establish a prima facie case against a manufacturer under the AEMLD, a plaintiff must show that (1) the defendant manufacturer sold a defective product, (2) the defect was the cause in fact of the plaintiff's injury and is traceable to the defendant, and (3) the product reached the plaintiff without substantial modification to the condition in which it was sold. Sears, Roebuck, 395 So.2d at 994.
A.
8
Under the first element of the prima facie case, a defect in a product is defined as "that which renders a product 'unreasonably dangerous,' i.e., not fit for its intended purpose...." Casrell, 335 So.2d at 133. "Defective" means that "the product does not meet the reasonable expectations of an ordinary consumer as to its safety." Id. A plaintiff does not have to establish the specific defect that caused his injury, only that the product was unreasonably dangerous. Sears, Roebuck, 395 So.2d at 995.
9
After reviewing the record, and drawing all factual inferences in favor of Goree, we conclude that he has made a sufficient showing that the Chieftain was unreasonably dangerous to an ordinary consumer when sold by Winnebago. The testimony discloses that the temperatures generated above the carpeting of the floorboard on the driver's side were more than sixty-five degrees above that which would normally cause burn injuries. In light of Dr. Behringer's opinion that higher temperatures require a shorter period of exposure to result in harm, and that a person can be burned at lower temperatures without being aware of the injury initially, the district court improperly decided as a matter of law that the Winnebago was not defective. Goree produced sufficient evidence to present a question of fact for the jury, which is ordinarily charged with the duty to decide whether a product is unreasonably dangerous. See Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 449 (Ala.1987); Casrell, 335 So.2d at 133.
10
We also conclude that the district court overstated its case when it held that expert testimony is always required to establish a defect under the AEMLD. While such testimony may be necessary when the product alleged to be defective is complex and technical in nature, expert testimony is not required when a jury could reasonably infer from the product's failure "under all the attendant circumstances" that its defective condition caused the plaintiff's injury. Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328 (Ala.1991); Sears, Roebuck, 395 So.2d at 995. The plaintiff establishes a prima facie case as long as he provides sufficient evidence from which the jury could deduce that the product was defective, and that his injury was caused by the defect.
11
Although the Winnebago Chieftain may be characterized as a complex and technical piece of machinery, Goree asserts simply that the temperatures above the floorboard rendered the Chieftain unreasonably dangerous so that it did not meet the reasonable expectations of an ordinary consumer. He does not have to show the exact cause of the high temperatures, only that the Chieftain is unreasonably dangerous. He supplied two experts whose combined testimony indicate that the Chieftain's floorboard temperatures climbed to levels capable of causing burn injuries. He also offered testimony that the defective condition could have been alleviated by the installation of a twenty-five dollar heat shield. See Brownlee v. Louisville Varnish Co., 641 F.2d 397, 401 (5th Cir. Unit B April 1981) (considering remedial alterations which might have averted injury in concluding that a jury could determine that a product was unreasonably dangerous for its intended use). Under all the facts adduced during discovery, a reasonable jury could infer without the aid of expert testimony the existence of a specific defect in the product and conclude that the Chieftain's unreasonably dangerous condition was the cause of Goree's injury.
12
Winnebago contends that the district court correctly held that expert testimony going directly to the existence of a specific defect is a requisite for recovery under the AEMLD. It cites Sears, Roebuck as an example of what it describes as Alabama's rejection of the exact proposition that we adopt here. In that case, a tire which the plaintiff had purchased from Sears, Roebuck & Co. exploded during use after having been driven for approximately 30,000 miles. The plaintiff alleged that Sears, Roebuck & Co. had sold the tire in a defective condition and was therefore liable under the AEMLD. The Alabama Supreme Court held that the plaintiff's mere allegation that a four and one-half month old tire had blown out while in use was not adequate proof to establish a prima facie case under the AEMLD. It observed that "[b]lowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the roads over which they are driven and the happenstance striking of damaging objects." Sears, Roebuck, 395 So.2d at 996.
13
Contrary to Winnebago's assertion, the Sears, Roebuck court did not reject the plaintiff's suit under the AEMLD because of its failure to present expert testimony to establish the existence of a defect. Instead, it found that the plaintiff had failed to produce any evidence other than the fact of the blowout from which a reasonable jury could conclude that the tire was defective. Consequently, Sears, Roebuck is distinguishable from the present case where there is adequate evidence showing a defect in the product, thereby establishing a prima facie case. Nor did the Sears, Roebuck court pretermit the pursuit of any case under the AEMLD without the use of expert testimony going to the existence of a specific defect. As we have already noted, Sears, Roebuck itself recognized that there will be certain instances under the AEMLD where a reasonable jury can infer from the attendant circumstances, without the aid of expert testimony, that a plaintiff's injuries resulted from a product's unreasonably dangerous condition. See id. at 995.
B.
14
The district court further erred when it decided as a matter of law that Goree is not an ordinary consumer because of his paraplegic condition. Whether a consumer is an "ordinary consumer" depends upon whether he was a foreseeable consumer. Cf. Caudle v. Patridge, 566 So.2d 244, 246 (Ala.1990). It does not depend, as Winnebago contends, upon whether Winnebago intended for its Chieftain to be operated by a paraplegic with no sensation to heat in his feet. The proper question in this case is whether it was foreseeable for any person to be burned while operating the Chieftain.
15
As we have already described, Goree's expert witnesses testified that the Winnebago's floorboard temperatures climbed to levels sixty-five degrees higher than the minimum necessary to burn the feet of any human being. Dr. Behringer offered his opinion that the amount of time and degree of temperature required to cause a burn is the same for both paraplegics and people with normal sensation to heat. This evidence is sufficient for a reasonable jury to find that even a person with normal sensitivity in their feet could foreseeably have been burned by the excessive heat emanating from the Chieftain's floorboard. Based upon this testimony, we conclude that the district court improperly weighed the evidence when it held that Goree could not as a matter of law be an ordinary consumer of the Winnebago. A reasonable jury could find from the evidence presented thus far that any person might have been burned by the Chieftain's floorboard temperatures.
16
Additionally, Winnebago's argument that it does not manufacture motor homes for operation by paraplegics and never intended for the Chieftain to be operated by a person whose feet were not sensitive to heat raises the question of whether Goree was guilty of contributory negligence in his use of the product rather than whether he is an ordinary consumer. Because the AEMLD retains fault as the gravamen of an action against a manufacturer who sells a product that is unreasonably dangerous when put to its intended use, the defendant manufacturer may assert the affirmative defenses of lack of causal relation, assumption of the risk, and contributory negligence. Brownlee, 641 F.2d at 400 (citing Casrell, 335 So.2d at 143). The defendant bears the burden of proving contributory negligence by showing that the plaintiff (1) had knowledge of the dangerous condition, (2) appreciated the danger under the surrounding circumstances, and (3) acted unreasonably given his knowledge and appreciation. Caterpillar Tractor Co. v. Ford, 406 So.2d 854, 857 (Ala.1981).
17
The plaintiff's use of a product in a manner not intended by the manufacturer provides a basis for the defense of contributory negligence. See Brownlee, 641 F.2d at 400. This is normally a jury question, and "the Court must be careful not to construe the phrase ["intended use"] so strictly as to actually resolve questions of contributory negligence or assumption of the risk without submitting those issues to the jury." Brownlee, 641 F.2d at 400 (citing General Electric Co. v. Mack, 375 So.2d 452, 456 (Ala.1979)). Winnebago contends that Goree misused the Chieftain because he operated the vehicle continuously for six hours while wearing only socks on his feet. It states that a person with normal sensation to heat would have sensed the rising floorboard temperatures and moved their feet before being burned. These allegations ignore whether Goree knew that the Chieftain's floorboard temperatures could rise to dangerously high levels during periods of extended operation and appreciated that danger under the surrounding circumstances. We therefore conclude that Winnebago has not shown the lack of a dispute concerning whether Goree was guilty of contributory negligence in his use of the motor home under the surrounding circumstances.
C.
18
The third element of the plaintiff's prima facie case under the AEMLD requires a plaintiff to establish that the product "was expected to, and did, reach the user without substantial change in the condition in which it was sold." Banner Welders, Inc. v. Knighton, 425 So.2d 441, 450 (Ala.1982) (quoting Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala.1976)). This examination is tied to proximate cause. The question is whether the plaintiff's "injuries were proximately caused by a defect in the product as manufactured and sold, or by a defect created by the alteration by the user or a third party." Banner Welders, 425 So.2d at 451 (quoting Frederick E. Fleder, Annotation, Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller As Affecting Liability for Product-Caused Harm, 41 A.L.R.3d 1251, 1253 (1972)). Standing alone, the fact that a product has been changed is not enough as a matter of law to relieve the manufacturer of liability. The manufacturer can still be liable for the plaintiff's injuries if there is sufficient evidence that the injuries were not caused by the modification to the product. Johnson v. Niagara Machine and Tool Works, 555 So.2d 88, 91 (Ala.1989).
19
The hand controls that Goree installed enabled him to operate the Chieftain when he would not otherwise have been able to do so. However, there is no evidence in the record that the modification played any part in creating or aggravating the Chieftain's defective heating problem, or that it was the cause of Goree's injuries. A non-paraplegic might also have been burned even without the installation of hand controls. Thus, the mere fact that hand controls were installed cannot be characterized as a matter of law as the proximate cause of Goree's injuries. We therefore hold that the district court decided the issue of substantial modification prematurely, and that it should be left for the jury to decide.
III.
20
Goree also contends on appeal that Winnebago was under a duty to warn consumers of the Chieftain of the risk of injury occasioned by the excessive floorboard temperatures. The district court did not address this issue, which was raised in Goree's complaint, and consequently the duty to warn did not enter into its consideration of the grant of summary judgment. We therefore do not reach this claim on appeal since it does not affect the outcome of our decision.
CONCLUSION
21
In summary, we conclude that Goree has presented sufficient evidence to establish the existence of the elements of his prima facie case under the AEMLD. Accordingly, we REVERSE the district court's grant of summary judgment and entry of final judgment in favor of Winnebago, and REMAND for further proceedings consistent with this opinion.
*
See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
CHRISTOPHER IHEBEREME, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1106 (ABJ)
)
CAPITAL ONE N.A. )
as Successor by Merger to )
Chevy Chase Bank, F.S.B., et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
This matter is before the Court on plaintiffs’ Fed. R. Civ. P. 59 motion for
reconsideration of the Order granting summary judgment to defendants, see March 28, 2013
Order (“Order”) [Dkt. # 40], and for new trial. Plaintiffs have not satisfied the requirements of
Rule 59 and for the reasons discussed below, plaintiffs’ motion will be denied.
BACKGROUND
On March 28, 2007, plaintiff Christopher Ihebereme purchased a house in the District of
Columbia and signed a thirty-year promissory note for $280,000. See Note, Ex. A to Defs.’ Mot.
for Summ. J. and Alternative Mot. for J. on the Pleadings (“Defs.’ Mot.”) [Dkt. #34-1]. His
nephew, plaintiff Chidozie Ihebereme, co-signed the mortgage. Note at 3. The Note required
Christopher Ihebereme to pay $1,816.08 on the first day of every month until the mortgage was
paid off. Id. ¶ 3. Plaintiffs were required to make monthly payments to a specified address or
“at a different place if required by the Note Holder.” Id. ¶ 3. The promissory note also provided
a grace period of fifteen days from the date a payment was due before the payment would be
considered late. See id. ¶ 6.
Plaintiffs also signed a Deed of Trust which required them to pay principal, interest, and
funds into escrow every month, which included $406.00 per month toward private mortgage
insurance (“PMI”). See Deed of Trust, Ex. C to Defs.’ Mot. [Dkt. #34-3]; Commitment/
Certificate, Ex. D to Defs.’ Mot. [Dkt. #34-4]. To have the PMI requirement discontinued, the
loan balance had to have amortized or have been “paid down to 78% of the original value and
[plaintiff was] current on [his] monthly payments.” Addendum to Loan Application, Ex. G to
Defs.’ Mot. [Dkt. # 34-7] ¶ 11 (emphasis in original). Plaintiffs made monthly payments from
May 2007 through March 2009. However, defendants denied plaintiffs’ request to have the PMI
removed on the grounds that the borrower “must have had no payment 30 days or more past due
in the 12 months preceding the date on which the mortgage insurance will be cancelled and must
have had no payment 60 days or more past due in the 24 months preceding that date.” Letter
from Karen Neugebauer to Christopher Ihebereme (April 10, 2009), Ex. H to Defs.’ Mot. [Dkt. #
34-8] at 1.
Plaintiffs’ suit revolved around four core issues: 1) defendants’ alleged refusal to permit
plaintiff to make his monthly mortgage payments online, 2) defendants’ alleged failure to
properly credit three payments in a timely manner, 3) defendants’ alleged improper calculation
and maintenance of the PMI requirement on the mortgage, and 4) allegedly false statements
defendants made about the loan to credit bureaus and to Christopher Ihebereme’s family which
they did not correct. See generally 2d Am. Compl. [Dkt. # 24].
After the case was removed to this Court from the D.C. Superior Court, plaintiffs filed a
second amended complaint on June 24, 2011. 2d Am. Compl. In their second amended
2
complaint, plaintiffs sued for breach of contract, breach of duty of good faith and fair dealing,
fraud, violations of the D.C. Consumer Protection Procedures Act, defamation, promissory
estoppel, violations of the Homeowner’s Protection Act, and violations of the Fair Credit
Reporting Act. Id. at ¶¶ 13–116. The parties engaged in discovery, which closed on January 20,
2012. See Minute Entry (Jan. 17, 2012).
On July 7, 2013, defendants filed a motion for summary judgment and in the alternative a
motion for judgment on the pleadings, which was fully briefed. See Defs.’ Mot. [Dkt. # 34];
Pls.’ Opp. to Defs.’ Mot. [Dkt. # 35]; Defs.’ Reply in Supp. of Defs.’ Mot. [Dkt. # 37]. The
Court granted defendants’ motion for summary judgment on March 28, 2013 on all counts. See
Order. Plaintiffs have now filed a motion for reconsideration of this Court’s Order, pursuant to
Fed. R. Civ. P. 59(e).
STANDARD OF REVIEW
“Motions under Fed. R. Civ. P. 59(e) are disfavored and relief from judgment is granted
only when the moving party establishes extraordinary circumstances.” Niedermeier v. Office of
Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d
1053, 1057 (D.C. Cir. 1998). Specifically, “‘[a] Rule 59(e) motion is discretionary and need not
be granted unless the district court finds that there is an intervening change of controlling law,
the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quoting Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996). “Rule 59(e) . . . ‘may not be used to relitigate old matters,
or to raise arguments or present evidence that could have been raised prior to the entry of
judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008), quoting 11 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995); see
3
also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C.
2011) (“In this Circuit, it is well-established that motions for reconsideration, whatever their
procedural basis, cannot be used as an opportunity to reargue facts and theories upon which a
court has already ruled, nor as a vehicle for presenting theories or arguments that could have
been advanced earlier.”) (internal quotation marks and citations omitted). Furthermore, Rule
59(e) provides that a “motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.” Fed. R. Civ. P. 59(e).
ANALYSIS
Plaintiffs’ Rule 59(e) motion is untimely1 and the Court could deny the motion on that
basis alone. However, even if the Court were to consider the motion, it fails because plaintiffs
have not presented new evidence, demonstrated that the Court’s ruling is legally erroneous,
presented an intervening change of law, or shown that denying the motion would create manifest
injustice. Although plaintiffs point to certain material from the documentary record, the “new
evidence” plaintiffs have proffered in connection with this motion consists solely of excerpts
from the same record the Court reviewed and relied upon in deciding defendants’ motion for
summary judgment. Even if some of the documents were not previously specifically referenced
in the parties’ summary judgment submissions, that does not make them “new;” plaintiffs had
them in their possession during discovery and failed to submit them to the Court. Therefore,
plaintiffs’ motion for reconsideration will be denied.
The crux of plaintiffs’ argument is that the Court relied upon an incomplete factual
record. See Pls.’ Mot. for Recons. (“Pls.’ Mot.”) [Dkt. # ] at 1–2. Specifically, plaintiffs claim
1
The Court issued its final order on March 28, 2013. Plaintiff filed his motion for
reconsideration on May 24, 2013, more than 28 days after the Court’s entered its judgment. Fed.
R. Civ. P. 59(e) (“[M]otion to alter or amend a judgment must be filed no later than 28 days after
the entry of the judgment.”).
4
that they have brought forth new evidence to demonstrate a genuine issue of material fact
regarding their claims of breach of the duty of good faith and fair dealing and their claim of
defamation. See id. However the exhibits plaintiffs submit are not “new evidence” within the
meaning of Rule 59(e).
I. Breach of Duty of Good Faith and Fair Dealing
A. Claim Regarding Paying Mortgage Online
Plaintiffs alleged that defendants breached their duty when they “arbitrarily refused” to
allow plaintiffs to make mortgage payments online or at the bank branch locations. 2d Am.
Compl. ¶¶ 26–27. Although the Note specified that payments should have been mailed to “P.O.
Box 17000, Baltimore, MD 21203 or at a different place if required by the Note Holder,” the
Court held that the Note did not specifically prohibit payment by any other method and therefore
the relevant question was “whether the record [demonstrated that] defendants interfered with”
plaintiffs’ ability to make payments. Ihebereme v. Capital Once, N.A., 933 F. Supp. 2d 86, 103
(D.D.C. 2013). The Court found that there was no such evidence to indicate defendants
intentionally interfered with plaintiffs’ ability to perform under the contract. Id.
Plaintiffs present exhibits 1D, 2A, 2B, and 3Biv as “new evidence” to speak to the
Court’s conclusions regarding this claim. Exs. to Pls.’ Mot. (“Exhibits”) [Dkt. #45-1] at 16–25,
31. However these exhibits are not new because the parties had already argued the substance of
these documents in their briefs. Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d
82, 85 (D.D.C. 2009) (rejecting plaintiff’s “new evidence” on the grounds that it was “already
argued in [the parties’] briefs regarding the motion to dismiss[,]” which the court “explicitly
analyzed . . . and ruled against . . . .”). These documents were previously included in the factual
record the Court relied upon during the pendency of defendants’ motion for summary judgment,
5
contrary to plaintiffs’ contention. Specifically, these exhibits were attached to plaintiffs’
opposition. Ex. 7 to Pls.’ Opp. to Defs.’ Mot. [Dkt. #35-7] at 2–4; Ex. 15 to Pls.’ Opp. to Defs.’
Mot. [Dkt. # 35-15]. Although exhibit 2B incorporates more pages than were originally filed,
plaintiffs use the exhibit to reargue facts that the parties conceded and arguments that the Court
previously rejected in its March 2013 decision. 2 This provides sufficient grounds to deny
plaintiffs’ motion for reconsideration for this claim. Ctr. for Pub. Integrity v. FCC, 515 F. Supp.
2d 167, 169 (D.D.C. 2007), quoting Pearson v. Thompson, 141 F. Supp. 2d 105, 107 (D.D.C.
2001) (“A motion for reconsideration will not be granted if a party is simply attempting to renew
factual or legal arguments that . . . [were] asserted in . . . [the] original briefs and that were
already rejected by the Court.”) (internal quotation marks omitted).
B. Claim Regarding Failure to Credit Payments Timely
Plaintiffs also claimed that defendants breached their duty by failing to credit the
December 2008, January 2009, and February 2009 3 payments in a timely manner. The Court
found that “[p]laintiff offer[ed] no evidence, other than unsubstantiated claims . . . showing that
the bank delayed crediting the December 2008 payment” and “no evidence that show[ed] when
the January 2009 payment was made.” Ihebereme, 933 F. Supp. 2d at 105. The Court granted
defendants’ motion because a reasonable fact-finder could not find for plaintiffs on this claim.
Id.
2
These exhibits reflect that defendants mistakenly applied plaintiffs’ February 2009
payment late and that bank tellers had difficulty processing payments. However, these facts
were already before the Court, and the Court found did not they did not establish the alleged
intentional interference with plaintiffs’ ability to make payments. Ihebereme, 933 F. Supp. 2d at
103–04.
3
Defendants conceded the February 2009 payment was mistakenly credited late. Defs.’
Mot. at 4–5.
6
Plaintiffs present exhibits 3Bi, 3Bii, and 3Biii as “new evidence” to raise a genuine issue
of material fact regarding the timeliness of those payments. Exhibits at 26–30. Although
exhibits 3Bii and 3Biii were not previously before the Court, plaintiffs concede that they
possessed these documents during discovery, so they therefore cannot constitute new evidence.
Pls.’ Mot. ¶¶ I, J; see also Exxon Shipping Co., 554 U.S. at 485 n.5, quoting 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995) (“[Motions
for reconsideration] may not be used . . . to raise arguments or present evidence that could have
been raised prior to the entry of judgment.”) (internal quotation marks omitted). Exhibit 3Bi was
not previously submitted to the Court, but it does not support reconsideration because it does not
supply facts that would demonstrate that the Court’s ruling was legally erroneous. Exhibit 3Bi
addresses conversations between plaintiffs and defendants’ employees in March 2008, which do
not alter the Court’s reasoning regarding the December 2008, January 2009, or February 2009
payments. Furthermore, these documents appear to relate to factual allegations that the Court
previously considered. 4
C. Claim Regarding PMI
Plaintiffs also claimed that defendants breached their duty of good faith and fair dealing
by miscalculating the PMI and affecting plaintiffs’ eligibility to have the PMI removed by
crediting plaintiffs’ payments late. The Court granted defendants’ motion for summary
judgment with regard to these claims because plaintiffs did not meet the requirements to have the
4
Exhibits 3Bii and 3Biii relate to a fact that defendants conceded: that the bank
mistakenly characterized the February 2009 payment as late on March 19, 2009 and that bank
tellers attempted to assist in processing payments. See supra note 2.
7
PMI removed, 5 and plaintiffs’ claim regarding the PMI miscalculation was unsubstantiated in the
record. Ihebereme, 933 F. Supp. 2d at 105.
Plaintiffs present exhibits 1,1A, 1B, 1C, and 4 as “new evidence” to challenge the Court’s
conclusions, but these exhibits are also not new. See Exhibits at 1–15, 32. Exhibit 1A and 1C
were included as exhibits to plaintiffs’ opposition. Ex. 3 to Pls.’ Opp. [Dkt. # 35-3]. Exhibit 1B
is an excerpt from plaintiff Christopher Ihebereme’s deposition which was not, but could have
been, included in the original filings. These exhibits do not meet the Rule 59(e) standard.
Exhibit 4 is the PMI estimate. It was not previously made part of the record, but it does
not constitute new evidence because plaintiffs concede it was given to them “prior to the signing
of the mortgage on March 28, 2007.” Pls.’ Mot. ¶ L. Plaintiffs seek to uncover the calculations
that were used to derive the PMI estimate, but this is also an effort to “relitigate old matters.”
See Exxon Shipping Co., 554 U.S. at 486 n.5.
Exhibit 1 is an extract from the Post Closing Audit Summary. Plaintiffs argue that this
exhibit demonstrates that their payments were current and that the late payment in March 2009
should not have affected whether the PMI was removed. Pls.’ Mot. ¶ A. But the document does
not undermine the Court’s original determination of plaintiffs’ ineligibility to have the PMI
removed. Id.; see Ihebereme, 933 F. Supp. 2d at 105–06 (holding that as of March 2009,
plaintiffs had paid down only approximately 2% of the loan).
II. Defamation as to Christopher Ihebereme’s Family
Plaintiffs also alleged that defendants defamed plaintiff Christopher Ihebereme to his
family by allegedly sending letters “address[ed] to ‘Occupant’” to his household. 2d Am.
5
Plaintiffs must have paid the mortgage balance down to 78% of original value and have
payments current on the account. Addendum to Loan Application ¶ 11.
8
Compl. ¶ 93. In a claim for defamation in the District of Columbia, a plaintiff has the burden of
proving that
(i) a false and defamatory statement was written by the defendant about
the plaintiff; (ii) the defendant published it without privilege to a third
party; (iii) the defendant exhibited some fault in publishing the statement;
and (iv) the statement is actionable as a matter of law or the publication
has caused the plaintiff special harm.
Messina v. Fontana, 260 F. Supp. 2d 173, 176–77 (D.D.C. 2003), aff'd sub nom. Messina v.
Krakower, 439 F.3d 755 (D.C. Cir. 2006).
The Court granted summary judgment on this claim on two grounds. First, the Court
found that the only letters in the record were letters addressed to plaintiffs Christopher Ihebereme
and Chidozie Ihebereme, not to any ‘occupants,’ as alleged. Ihebereme, 933 F. Supp. 2d at 100.
Second, the Court held that defendants had a qualified immunity because when they sent the
letters to plaintiffs stating that the loan was delinquent, they reasonably believed the truth of
those statements. Id. (“A qualified privilege exists if the publisher believes, with reasonable
grounds, that his statement is true.”), citing Ford Motor Credit Co. v. Holland, 367 A.2d 1311,
1314 (D.C. 1977).
Plaintiffs present exhibit 5, a Notice of Foreclosure addressed to both plaintiffs and
“Current Occupant(s),” as “new evidence” to challenge the Court’s conclusion. Exhibits at 33–
35. This exhibit fails to fulfill the Rule 59(e) standard for “new evidence” because plaintiffs do
not argue that it was previously unavailable or that it could not have been presented to the Court
before a judgment was entered. Moreover, the letter does not demonstrate, nor do plaintiffs
argue, that the Court’s finding of a qualified immunity is legally erroneous. Therefore,
plaintiffs’ motion for reconsideration with regard to this claim will be denied.
9
CONCLUSION
For the reasons set forth above, the Court will deny plaintiffs’ motion for reconsideration
and for new trial. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: November 12, 2013
10
| {
"pile_set_name": "FreeLaw"
} |
948 S.W.2d 54 (1997)
John Martin WIGIERT, Appellant,
v.
The STATE of Texas, State.
No. 2-96-108-CR.
Court of Appeals of Texas, Fort Worth.
June 19, 1997.
*55 Richard S. Podgorski, Denton, for Appellant.
Bruce Isaacks, Criminal District Attorney, Dawn A. Moore, Michael Moore, George Leal, Assistant District Attorneys, Denton, Matthew Paul, State Prosecuting Attorney, Austin, for State.
Before DAY, BRIGHAM and HOLMAN, JJ.
OPINION
DAY, Justice.
A jury found appellant John Martin Wigiert guilty of false imprisonment and sentenced him to 31 days in the Denton County Jail and a $500 fine. He appeals and raises five points of error. He first complains that the trial court erred by admitting evidence of an uncharged extraneous offense, contending that it was not relevant to a material issue other than character and its probative value was outweighed by its prejudicial effect. Next, he argues that the trial court erred by admitting hearsay testimony of an extraneous offense because the State used it as evidence of the offense charged and no issue relating to the extraneous offense was before the jury. In points of error three and four, Wigiert asserts that the trial court erred in two instances by permitting a State's witness to read to the jury part of a prior statement given to police. He argues that the prior statement was inadmissible hearsay evidence that is not encompassed by the recorded recollection hearsay exception. Finally, he complains that the trial court erred by allowing the State to impermissibly bolster the complainant's unimpeached testimony. We affirm the judgment of the trial court.
BACKGROUND
The complainant Joy Sneed testified that Wigiert falsely imprisoned her. She testified that in response to a message on her answering machine, she telephoned Valerie Moreno, a friend of hers and Wigiert's. Wigiert answered and pretended to be talking to Moreno and another friend, Jaylene. He told Sneed that Moreno and Jaylene wanted her to come over and talk with them. Sneed then went to Moreno's apartment. Wigiert answered the door and let her in. After entering the apartment and looking around, she realized that Moreno and Jaylene were not there.
Sneed further testified that she tried to leave, but Wigiert would not let her get by him to the door. He shoved her against the wall and poked her on the shoulder with his fingertips. He also pushed her backwards, causing her hip to hit a doorknob. Sneed finally maneuvered her way to the door and discovered the doorknob and dead bolt were locked. As she tried to unlock the door, Wigiert pushed himself between her and the door and repeatedly pushed her hands away from the lock. He then pinned her up against the door and threatened her. She testified that he told her: "Don't come around here;" "Don't mess with my friends;" "If you come over here, I'm gonna to kill you;" "I'll destroy your car;" and "You'll never be able to go back to school."
*56 Sneed then testified that she managed to pick up a shovel leaning against a coffee table. She swung it at Wigiert, but he grabbed it away and shoved her with it, striking her in the ribs with the handle. She eventually managed to escape and ran to a police officer she saw on the street in front of the apartment complex. She told the officer what had happened and he returned with her to the apartment. Wigiert would not answer the door. They left, and she later gave the police a written statement.
Moreno also testified, but stated that she could not remember anything about her contact with Wigiert on that day. However, she had given police a statement near the date of the offense. She testified that she remembered making the statement, that it was written in her handwriting, and that she had signed it before a witness. She then read parts of the statement to the jury.
[STATE'S ATTORNEY:] Ms. Moreno, I would ask that you only read this first paragraph right here to the jury. Please do not read anything else below this.
[MORENO:] Okay. "On Saturday, October 12th, I confronted John Wigiert about [Sneed]. He told me that he made her believe that Jaylene and myself were in the apartment E-9 on Hickory Street, Alton House Apartments. He said he got her over there and locked the door behind her and started to harass her. He said all this and stood there smiling. He told me that he set it up."
....
Q. If you could just read about the
A. "Joy did call the night of the 12th, because we had plans. Otherwise, she wouldn't have called."
Daniel Conrad, the police officer that Sneed approached when she escaped from the apartment, testified that he was conducting a traffic stop when Sneed ran up to him crying and upset. Sneed told him that she had been "assaulted." He went with her to the apartment, but Wigiert would not answer the door. Conrad testified that he could tell that someone was at home. He stated that he reported the offense as an assault and that he did not include any facts in his report that made him believe it was a false imprisonment report. He further stated that based on all the facts that Sneed had told him, he believed Wigiert's actions would also constitute the offense of false imprisonment by physical force.
Guy Williamson, the police officer to whom the case was assigned, testified that he contacted Sneed and Moreno and took their statements. He further testified that he filed a probable cause affidavit on the offense of assault, but he believed the facts would also constitute probable cause for false imprisonment.
STANDARD OF REVIEW
All Wigiert's points of error challenge evidentiary rulings by the trial court. As an appellate court, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). Such issues are largely dependent on the individual judge's perception of common experience, and reasonable persons may often disagree. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g). Thus, reviewing courts should hesitate to substitute their own perceptions for those of the trial judge. See id. Therefore, provided a trial court ruling is "at least within the zone of reasonable disagreement, the appellate court will not intercede." Id.
NON-EXTRANEOUS OFFENSE
In his first point of error, Wigiert complains that the trial court erred by admitting evidence of "assault" during his prosecution for false imprisonment. He contends the evidence was not relevant to a material issue other than character and its probative value was outweighed by its prejudicial effect. Thus, it was inadmissible under Texas Rule of Criminal Evidence 404(b). Wigiert complains specifically about Conrad's testimony that Sneed approached him and told him about Wigiert's assaulting her with a shovel and Sneed's testimony that Wigiert threatened to harm her.
*57 However, viewing the evidence in the light most favorable to the trial court's ruling, it is reasonable to conclude that the "assault" occurred in the same transaction as the false imprisonment. To prove the offense of false imprisonment, the State had to prove that Wigiert restrained the victim. "A person commits [false imprisonment] if he intentionally or knowingly restrains another person." TEX. PENAL CODE ANN. § 20.02(a) (Vernon 1994). "Restrain" is defined as follows:
(1) "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is "without consent" if it is accomplished by:
(A) force, intimidation, or deception....
TEX. PENAL CODE ANN. § 20.01(1) (Vernon 1994). Thus, the "extraneous" offense evidence of which Wigiert complains is evidence of the same offense for which he was on trial. The State offered the evidence of Wigiert's "assault" on Sneed to prove that he restrained her without consent by force, intimidation, and deception. Therefore, by definition, the conduct described as an assault would not be extraneous or extrinsic to the charged conduct, and rule 404(b) is inapplicable. See TEX.R.CRIM. EVID. 404(b); Gillum v. State, 888 S.W.2d 281, 286 (Tex.App.El Paso 1994, pet. ref'd).
The trial court acted within the scope of its discretion when it admitted this evidence. We overrule Wigiert's first point of error.
HEARSAY EXCEPTIONS
Wigiert raises three points of error that challenge hearsay rulings by the trial court. He argues that the trial court erred by admitting hearsay testimony of an "extraneous offense" because the State used it as "evidence of the offense charged" and "no issue relating to the extraneous offense was before the jury." He argues that Conrad's testimony that Sneed ran up to him and told him she had been assaulted in an apartment by Wigiert was inadmissible hearsay. In points of error three and four, Wigiert asserts that the trial court erred in two instances by permitting Moreno to read to the jury parts of her prior statement given to police.
Excited Utterance
Conrad's testimony is admissible hearsay because it falls squarely within the "excited utterance" hearsay exception. Rule 803 describes an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX.R.CRIM. EVID. 803(2). Conrad testified as follows:
[STATE'S ATTORNEY:] And when did you first see Ms. Sneed?
[CONRAD:] She came knocking on my window. I saw her coming towards my car.
....
Q. How did she approach your car, walking, running?
A. She was running towards my car.
....
Q. How was she acting when she was knocking on your window?
A. Very, very upset. She was crying. She was very upset.
Q. So you got out of the car?
A. Yes, sir.
Q. All right. When you first saw Ms. Sneed, how did she appear at that time?
A. She wasn't calm.
Q. Was she crying?
A. Yes. You could tell she had been crying, facial
Q. Did she appear to be upset?
A. Yes.
Q. Was her voice cracking?
A. Yes.
Q. Was she having any difficulty talking to you?
A. She was working with her breath, yes.
Q. Working with her breath?
A. Trying to get her sentences together and stuff like that.
Q. Were you able to learn from Ms. Sneed what the problem was?
A. She told me she had been assaulted.
*58 He then continued to testify that Sneed told him she had been assaulted in an apartment by Wigiert.
Conrad's testimony indicates that Sneed was still under the stress of a startling occurrence, her false imprisonment, when she approached Conrad and made the statements to which he testified. See McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992); Mathews v. State, 835 S.W.2d 248, 248 (Tex.App.Fort Worth 1992, no pet.). Moreover, each statement that she made related to the circumstances of the startling occurrence. See McFarland, 845 S.W.2d at 846. The fact that some of her statements called the event an assault rather than a false imprisonment does not make them inadmissible under this exception to the hearsay rule. The trial court did not abuse its discretion by overruling Wigiert's hearsay objection. Accordingly, we overrule point of error two.
Recorded Recollection
In his next two points of error, Wigiert complains of the trial court permitting Moreno to read to the jury parts of her prior statement given to police. He argues that the prior statement was inadmissible hearsay evidence that is not encompassed by the recorded recollection hearsay exception.
While it is true that Wigiert's remarks to Moreno are not encompassed by the recorded recollection hearsay exception, those remarks are admissions and, as such, are not hearsay. See TEX. R. CRIM. EVID. 801(e)(2). Therefore, our review will focus on the admissibility of the document itself. We hold the document is admissible under the recorded recollection hearsay exception. Rule 803 provides for the recorded recollection hearsay exception as follows:
A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
TEX.R.CRIM. EVID. 803(5).
Wigiert concedes that the State met part of the predicate for admissibility under this rule by establishing that Moreno could not remember the events. His argument is that reviewing her statement did not in fact refresh her recollection and that the record does not reflect anything that affirmatively indicates that the statement is trustworthy. He contends that this places the testimony outside the scope of the recorded recollection hearsay exception. Both of these arguments run contrary to the plain language of the rule.
Moreno's testimony regarding whether the statement in fact refreshed her recollection was equivocal. She testified that she remembered, but she also testified that she did not remember. However, this no longer bears any effect on the admissibility of the testimony. See TEX.R.CRIM. EVID. 803(5). Before the adoption of the rules of criminal evidence, whether reviewing a recorded recollection in fact refreshed a witness's memory was relevant. If the memory was refreshed, the witness could testify to those facts. If it was not, the recorded recollection could be admitted into evidence provided the witness identified the statement and vouched for its correctness. See Welch v. State, 576 S.W.2d 638, 641 (Tex.Crim.App. [Panel Op.] 1979).
However under the present rule, it is only necessary that the prior statement be "shown to have been made or adopted by the witness when the matter was fresh in [her] memory and to reflect that knowledge correctly." TEX. R. CRIM. EVID. 803(5). The record sufficiently reflects that regardless of whether Moreno remembered the specific facts in her statement, she remembered making the statement and she remembered that the events would have been fresh in her mind when she made it.
[STATE'S ATTORNEY:] Okay. Why does that statement there help you refresh your memory?
*59 [MORENO:] That? I remember that. That'sI remember that.
Q. It's everything else, because it was so long ago?
A. Yeah, it was a long time ago.
Q. Is that statement written in your handwriting?
A. Yes.
Q. And did you sign that statement?
A. Yes.
Q. And did somebody witness you sign that statement?
A. Yes.
Q. And who witnessed you sign that statement?
A. A police officer.
....
Q. Okay. Would you have written that statement out when the events in question were fresh in your memory?
A. Yes.
....
Q. And when you could have recalled the events readily?
A. Yes....
Although Moreno did not specifically testify that the statement was accurate when made, she did not recant any part of her statement at trial and she originally made the statement under circumstances that support its reliability. See Phea v. State, 767 S.W.2d 263, 268 (Tex.App.Amarillo 1989, pet. ref'd). Moreno wrote this statement out herself and signed it before a police officer just a few days after the incident. Absent any showing that the statement is inaccurate, the general tenor of her testimony shows sufficient truthfulness to support a finding that the statement correctly reflects the knowledge Moreno had when she made it.
As regards any further affirmative proof of trustworthiness, provided "the circumstances of preparation cast doubt on the document's trustworthiness," the rule does not require any indicia of reliability beyond the provisions of the rule. See Phea, 767 S.W.2d at 267. Moreno wrote the statement out herself and signed it before a witness who was a police officer. Wigiert has put forth no circumstances casting doubt on this document's trustworthiness.
We hold that the trial court did not abuse its discretion when it ruled testimony from Moreno's prior statement to police was admissible hearsay under the recorded recollection exception. Thus, we overrule Wigiert's third and fourth points of error.
BOLSTERING
In his final point of error, Wigiert contends that the trial court erred by permitting the State to impermissibly bolster Sneed's unimpeached testimony. Since the adoption of the Texas Rules of Criminal Evidence, the Court of Criminal Appeals has refined its definition of bolstering:
"Bolstering" may perhaps be understood a little more precisely to be any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing "to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."
Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim.App.1993) (citing TEX.R.CRIM. EVID. 401) (alteration in original); see also Solomon v. State, 854 S.W.2d 265, 269 (Tex. App.Fort Worth 1993, no pet.). Accordingly, if the evidence makes any substantive contribution, if it even incrementally tends to further establish a fact of consequence, it is not bolstering. See Cohn, 849 S.W.2d at 819-20.[1]
*60 In the present case, Wigiert complains of Conrad's testimony that Sneed told him she had been assaulted and his testimony regarding her condition and demeanor immediately after the incident. He argues that this is substantially the same testimony as that provided by Sneed and "the State was in essence fortifying a part of the wall that had not been attacked." However, our review of the record does not indicate that Sneed's testimony stood unimpeached. Wigiert's attorney cross-examined Sneed, challenging the accuracy of her statement to police as compared to her testimony.
[DEFENSE ATTORNEY:] Okay. Now during this time, when you finally got to the front door, were you telling John, "I want to leave"?
[SNEED:] Yes. I said, "Let me out."
Q. Did you put that in your statement?
A. Not that I recall.
Q. Do you want to look to make sure?
A. No.
Q. But you said that you recalled everything that happened and that this was a very accurate statement because it was given just a couple of days after this incident allegedly occurred; is that right?
A. The things that are in there are accurate.
....
Q. This is an accurate statement?
A. Yes.
Q. Don't you think it would be very important to put in there that, "I was telling John Wigiert that I wanted to leave and he wasn't letting me leave"?
A. Now I do.
Q. Now you do, four years later, right?
A. I assumed that if I was fighting to get out, that he understood that I wanted out.
....
Q. And didn't Mr. Wigiert tell you just to leave him alone during this incident?
A. Yes, and I did leave him alone.
Q. Didn't he say that? Didn't he just say, "Leave me alone"?
A. He said, "Leave my friends alone."
[Q.] Could I approach the witness?
THE COURT: Yes.
Q. What does that say right there? He said, "You leave me alone." Did he not say that?
A. Yes.
Q. Does it say anything about leaving my friends alone?
A. No, but it does say, "Let me go."
Further, defense counsel emphasized that Sneed continued to associate with Wigiert after the incident and asked her several times whether she actually left with Wigiert after the offense rather than by herself as she had testified.
[DEFENSE ATTORNEY:] Now, in fact, you continued this relationship with Mr. Wigiert after this incident; is that not correct?
[SNEED:] I associated with him.
Q. Did you ever go out with him?
A. I went out with lots of people at the same time.
Q. Did you go out with Mr. Wigiert?
A. Yes.
Q. Okay. So you weren't pissed enough at him that you didn't want to go out with him anymore, right?
A. For a while I was.
Q. Okay. Until 1992, December of 1992, which was three monthsI'm sorry, which was 15 months later.
A. What is the question?
Q. All right. What I asked you was, you weren't mad enough at Mr. Wigiert over this incident that you didn't go out with him anymore.
A. Correct.
*61 Q. All right. And you continued going out with him for another, I'm sorry, 14 months.
A. Yes.
Q. Okay. Now, after you left the apartment, didn't you leave with Mr. Wigiert?
A. No.
Q. You didn't go out the door together?
A. No.
....
Q. Okay. But also you said that Mr. Wigiert did not leave with you; is that correct?
A. He did not leave with me. Oh, he followed mewe did not leave together. He followed me, pushing me.
Q. Okay. Now which one is right? Did you leave with him outside the door, or did he stay inside?
A. He followed me.
....
Q. All right. Ms. Sneed, you went out with Mr. Wigiert for a period of almost five years; is that correct?
A. Off and on. There were several months I never saw him.
Q. But from 1987 to 1992, in December of
A. We were friends. What do you define "go out with"?
Q. I mean go out and have a beer, go out to the movies, or go out and eat barbecue.
A. Yes, but with other people around us.
He also questioned her implying that she was making these allegations because Wigiert was living with someone else.
[DEFENSE ATTORNEY:] All right. So you went out with him sometimes?
[SNEED:] Sometimes.
Q. And he was living with a friend of yours now; is that correct?
A. Yes.
Q. Isn't that why you were pissed at Mr. Wigiert?
A. No.
Thus, Sneed's credibility was impeached during cross-examination. Conrad's testimony was an attempt to rehabilitate Sneed's credibility and rebut some of the implications that defense counsel's cross-examination of Sneed raised.
Moreover, it cannot be said that Conrad's testimony did not at least incrementally tend to further establish facts of consequence, i.e., that Sneed was upset and frightened, that she thought she had been assaulted, and that someone appeared to be in the apartment but no one would answer the door. See Cohn, 849 S.W.2d at 819-20. We hold that the trial court did not abuse its discretion by determining that Conrad's testimony was more than simple bolstering of Sneed's testimony. Consequently, we overrule Wigiert's final point of error.
CONCLUSION
In summary, the trial court acted within the scope of its discretion when it admitted evidence that Wigiert had "assaulted" Sneed because it was not extraneous to the charged offense. Moreover, the trial court did not abuse its discretion when it ruled that Conrad's testimony regarding what Sneed told him was admissible hearsay because she was under the stress of a startling occurrence when she made the statements. Further, it was not an abuse of discretion for the trial court to permit Moreno to read parts of her prior statement to police. Although Moreno could not remember the specific facts in the statement, she remembered making the statement and she remembered that the events would have been fresh in her mind when she made it. Additional indicia of the statement's reliability are not required because the circumstances of preparation do not cast doubt on the document's trustworthiness. Additionally, Conrad's testimony was not impermissible bolstering of Sneed's testimony because Sneed's testimony did not stand unimpeached and Conrad's testimony at least incrementally tended to further establish facts of consequence.
Accordingly, we affirm the judgment of the trial court.
NOTES
[1] In fact, there is some question regarding whether objecting to offered evidence as "bolstering" remains sufficiently specific to properly preserve error.
Prior to the adoption of the Rules of Evidence, "bolstering" was a proper objection when one item of evidence was used by a party to add credence or weight to some earlier unimpeached evidence that the same party had offered. Under case law existing prior to the promulgation of the Rules of Evidence, bolstering an unimpeached witness was "automatically" error. The Rules of Evidence, however, do not contain a specific rule pertaining to or prohibiting "bolstering." Moreover, nothing in the Rules prevents a party from adding credence to an unimpeached witness or adding credence to other evidence as long as that additional evidence is relevant. In fact, the Rules favor admissibility. Therefore, if such "bolstering" evidence is presented, the party seeking exclusion must object in accord with the Rules of Evidence so as to inform the trial court that the evidence is not relevant (Rule 402), the evidence is substantially prejudicial, confusing, needlessly cumulative (Rule 403), or otherwise specify a rule or reason found in the Rules to exclude the evidence.
Cohn, 849 S.W.2d at 821 (Campbell, J., concurring) (citations omitted).
| {
"pile_set_name": "FreeLaw"
} |
338 F.Supp.2d 191 (2004)
EIMSKIP, THE ICELANDIC STEAMSHIP CO., LTD. and EIMSKIP USA, Inc., Plaintiffs,
v.
MAYFLOWER INT'L, LTD. and Atlantic Fish Market, Inc., Defendants.
No. 02-CV-11499.
United States District Court, D. Massachusetts.
July 14, 2004.
*192 David J. Farrell, Jr., Law Office of David J. Farrell, Jr., S. Chatham, MA, for Eimskip USA, Inc., Eimskip, The Iceland Steamship Company Ltd., Plaintiffs.
Brian P. Flanagan, Flanagan & Hunter, Boston, MA, for Mayflower International Ltd., Defendant.
Gerald J. Zyfers, Newton, MA, for Atlantic Fish Market, Inc., Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
LASKER, District Judge.
This is an action to recover unpaid freight charges for 32 containers of frozen herring shipped from Everett, Massachusetts to Tallinn, Estonia on ships operated by EIMSKIP, The Icelandic Steamship Company, Ltd. ("EIMSKIP") in July 2001. The charges due on these shipments total $91,840.
It is undisputed that, in June 2001, EIMSKIP vessels carried two shipments of, respectively, four and fourteen containers of frozen fish to Estonia; that the bills of lading for these shipments listed Mayflower International, Ltd. ("Mayflower") as shipper; and that the freight charges for these shipments were paid by Atlantic Fish Market, Inc. ("Atlantic"). The present suit concerns three subsequent shipments, totaling 32 containers: eleven containers that departed Everett, Massachusetts on July 11, 2001; twelve containers that departed on the same date; and an additional nine containers that departed on July 23, 2001. Freight charges for these third, fourth, and fifth shipments remain unpaid.
EIMSKIP claims that Atlantic and Mayflower were engaged in a joint venture to ship the fish to Estonia and are jointly and severally liable for the freight charges incurred. Atlantic counter-claims against EIMSKIP for abuse of process. Mayflower cross-claims against Atlantic for indemnification and contribution to the extent that Mayflower is found liable.
The case was tried to the bench on March 1 and 2, 2004, with testimony from Rhonda Quilty-Tanner, regional manager at EIMSKIP Canada, Inc.; Boris Sorkin, principal of Atlantic; William C. Quinby, principal of Mayflower; and Leon Gelfand, a former business associate of Sorkin.
Findings of Fact
On the basis of the testimony and evidence presented, I find as follows:
1. Prior to the unpaid shipments at issue in this case, Atlantic Fish booked two shipments of frozen herring from Everett, Massachusetts to Estonia on EIMSKIP ships. (Exs. 1-9; Quilty-Tanner, Day 1, at 13, 26-29.) At the faxed instructions of Mayflower's Quinby, the bills of lading for those two shipments listed Mayflower as the shipper. (Exs. 3, 6, 9.) Atlantic purchased the cargo, tendering fifty percent of the purchase price to Mayflower upon the loading of the containers, and the balance upon the arrival of the cargo in Estonia. (Quinby, Day 2, at 66.)
*193 2. The bills of lading for the first two shipments state that freight was "Prepaid at U.S. Norfolk VA." Quilty-Tanner explained that the phrase indicates that the freight was to "be paid for in North America as opposed to destination" and that EIMSKIP, consistent with trade practice, extended credit for 30 days after sailing, after which two percent interest accrued. (Quilty-Tanner, Day 1, at 14, 34, 85.) In accordance with the parties' arrangements (Id. at 18), EIMSKIP sent invoices to Atlantic for these two shipments (e.g. Ex. 7). Atlantic paid these invoices. (Quilty-Tanner, Day 1, at 27, 93.)
3. Sorkin orally booked a third and fourth shipment bound for Estonia, consisting respectively of eleven and twelve containers of frozen herring (Id. at 30-32, 34, 71; Exs. 10, 13) and advised Quilty-Tanner that a fifth shipment would be booked by Quinby (Quilty-Tanner, Day 1, at 37); this fifth shipment ultimately consisted of nine containers (Ex 16). These final three shipments were all shipped "Prepaid at U.S. Norfolk VA."
4. Quilty-Tanner took instructions from both Sorkin and Quinby regarding the shipments. Breaking down the defendants' shipping tasks, Sorkin negotiated the freight rate, (Quilty-Tanner, Day 1, at 56, 69); instructed Quilty-Tanner to hold the original bills of lading (Id. at 24); had a mutual agreement with Mayflower that Atlantic Fish would pay EIMSKIP's invoices (Id. at 18 (Sorkin told Tanner "he was paying the freight"), 27, 73 (Quinby told Tanner that Sorkin "would pay" and Sorkin confirmed)); went to Estonia to receive the cargo (Id. at 56), and paid storage and refrigeration charges there (Id. at 57). Quinby inspected the fish as it came off the fishing vessels (Quinby, Day 2, at 53); coordinated the shipment dates; calculated the number of containers needed for the quantity of cargo (Id. at 52); proofed and finalized the bills of lading, (Exs. 3-5; Quilty-Tanner, Day 1, at 21-24); and prepared various export documents (Quinby, Day 2, at 53).
5. Quilty-Tanner testified that from her perspective, Atlantic and Mayflower were engaged in "a type of partnership, and ultimately it just went bad." (Quilty-Tanner, Day 1, at 55.) Sorkin and Quinby, however, both denied the existence of any sort of joint venture or partnership between the two entities, and the record indicates that throughout the period in question, Quinby was acting as an agent for H & L Axelsson,[1] the producers of the fish (Quinby, Day 2, at 64-65; ex. 34), while Atlantic was either itself the buyer of the fish, or acting as an agent for, or joint venturer with, OU Watkins, the entity that ultimately took possession of the cargo and was listed as the "notify party" on all five bills of lading (Quinby, Day 2, at 53; Sorkin, Day 2, at 31).
6. For the third, fourth, and fifth shipments, as for the prior shipments, Mayflower was listed as the shipper on the bills of lading, and the goods were consigned "to order of shipper." (Exs. 11, 14, 18.) These instructions meant that Mayflower was the sole entity authorized to release the containers. (Quilty-Tanner, Day 1, at 63-64; Quinby, Day 2, at 58.) The primary motive for listing Mayflower as shipper on the bills of lading was "to maintain control of the cargo for the owners of the cargo, H & L Axelsson, and not let the cargo be released until they had secure payment." (Quinby, Day 2, at 72.) Quinby, who testified that he has over twenty years of experience in the shipping industry, acknowledged in retrospect that *194 the bill of lading "should have said `as agent for,' `on behalf of H & L Axelsson,'" and agreed that it is "bad business to list a non-owner as the shipper on a Bill of Lading". (Id. at 50.) Quinby testified that he received only faxed copies of the bills of lading, without the backside terms, disputing Quilty-Tanner's testimony that courtesy copies of all bills of lading had been sent to both Quinby and Sorkin by mail; however, Quinby agreed that the backside terms and conditions governed the contracts of carriage for the 32 containers in dispute. (Id. at 57.)
7. The backside terms and conditions of the bills of lading define "Merchant" as including:
jointly and severally, the shipper, the receiver, the consignee, the holder of this Bill of Lading, any person owning or entitled to the possession of the Goods or of this Bill of Lading and anyone acting, whether as servant or agent or otherwise, of any such person. (Ex. 9.)
Paragraph 16 provides, in pertinent part:
(i) .... Full freight hereunder shall be considered fully earned on receipt of the Goods by the Carrier [EIMSKIP] and the Carrier shall be entitled to all freight and Charges due hereunder whether actually paid or not, and to receive and retain them under all circumstances whatsoever, the Vessel and/or Goods lost or not lost.
(ii) All unpaid Charges shall be paid in full and without any offset, counterclaim or deduction....
(iv) The Merchant shall defend, indemnify and hold harmless the Carrier against all and any cost incurred by the Carrier in exercising its rights under this clause. (Id.)
8. Sorkin denied any involvement with the third, fourth, and fifth shipments, and denied any responsibility for the freight charges due. (Sorkin, Day 1, at 95; Day 2, at 21.) He also denied having booked any of the five shipments. (Sorkin, Day 1, at 91-92; Day 2, at 9-10.) The Court found Sorkin uncooperative, evasive, non-responsive, and less than credible.
9. When the three shipments in question arrived in Estonia in late July, 2001, EIMSKIP placed a hold on the cargo due to outstanding freight charges. (Quilty-Tanner, Day 1, at 44.) During this period, Quinby called Quilty-Tanner to inquire whether freight charges had been paid; he expressed concern that he had not yet been paid for the cargo and stated that he "wasn't prepared to let the cargo go at that time" and that "he was concerned that he was going to get stuck with the freight bill." (Id. at 42-43.)
11. During this same period, Sorkin called Quilty-Tanner from Estonia, "very upset" that the goods had not been released. Sorkin threatened to walk away from the cargo if EIMSKIP did not release it immediately (Id. at 46) and promised that if the goods were released, he would "pay for this when he got home," (Id. at 43). Quilty-Tanner provided Sorkin with the name of her supervisor (Oskar Frederickson); soon thereafter she received a call from Frederickson, who instructed her to lift EIMSKIP's hold on the goods. (Id. at 47.)
12. On August 20, 2001, EIMSKIP received a faxed communication from Quinby authorizing the release of the cargo. (Ex. 24.) Upon receiving this fax, Quilty-Tanner contacted EIMSKIP's offices in Estonia and/or Germany and directed them to release the goods. (Quilty-Tanner, Day 1, at 42.) It is undisputed that Watkins received the cargo in Estonia. (Ex. 40; Sorkin, *195 Day 1, at 84; Sorkin, Day 2, at 19; Quinby, Day 2, at 83.)
13. The ocean freight incurred was $31,570 for the eleven containers, $34,440 for the twelve containers, and $25,830 for the nine containers, totaling $91,840 for all 32 containers. (Exs. 12, 15, 19.)
14. As with the first two shipments, EIMSKIP sent invoices to Atlantic for the third, fourth, and fifth shipments; these invoices have not been paid. (Quilty-Tanner, Day 1, at 33-36, 39-40.) EIMSKIP at no time invoiced Mayflower for the shipments. (Id. at 51.) Quilty-Tanner's testimony regarding Mayflower was contradictory: she initially testified that Mayflower was not invoiced "[b]ecause it wasn't what was arranged" (Id. at 51), but later testified that credit was extended to Mayflower as well as Atlantic because "Mayflower is on the Bill of Lading and the documents were approved to go as prepaid, [which] also made Mayflower in under the same umbrella," (Id. at 85.)
15. Between August 2001 and July 2002, EIMSKIP sent monthly statements to Atlantic, and Quilty-Tanner had frequent phone conversations with Sorkin in which she offered a variety of payment plans. (Id. at 49.) Sorkin never wrote to EIMSKIP to dispute the invoices. In conversations with Quilty-Tanner, Sorkin did not dispute owing the freight charges but rather said that he was "having a bit of trouble right now and that... he would give us something when he could." (Id. at 49, 78.) In Quilty-Tanner's final conversation with Sorkin, in July 2002, he for the first time mentioned alleged problems[2] with the cargo as the reason that he had not been paid for the fish (presumably by Watkins) and consequently could not pay the freight charges. (Ex. 26.)
16. It is unclear exactly what ownership interest Atlantic Fish and Mayflower had in the frozen herring cargo shipped in the 32 containers at issue. Quinby testified that the cargo was sold to Atlantic Fish "FOB stowed in Eimskip containers in Everett," which "meant that the fish became Atlantic Fish Market's property at that time." (Quinby, Day 2, at 44.) However, that is inconsistent with Quinby's July 18, 2001 fax to Atlantic stating that Mayflower considered the first twenty-three[3] containers' cargo "unsold" and requesting a "deposit and firm agreement" for the purchase of the cargo. (Ex. 41.) It is also inconsistent with Quinby's efforts to sell the cargo to others besides Atlantic. (Ex. 28; Quinby, Day 2, at 46-47.) Perhaps the most mysterious piece of this puzzle consists of two separate and irreconcilable sets of documents, each purporting to relate to the sale of the 32 containers' cargo. Exhibits 20, 22, and 23 are invoices on Mayflower letterhead, dated respectively August 3, August 16, and August 20, 2001, for the sale of the cargo "C *196 and F Tallin" to OU Watkins for a total of $229,743. Quinby testified that he sent these invoices at the direction of Atlantic. (Quinby, Day 2, at 52.) Quilty-Tanner testified that the terms "C & F Tallin" mean that the freight is included in the selling price, which "would indicate to me that I would invoice Mayflower for the freight." (Quilty-Tanner, Day 1, at 53-55.) Exhibit 31B, on Atlantic letterhead, is a "Memorandum of Understanding" dated August 15, 2001 and signed by Daniel Axelsson and by Sorkin, confirming that Axelsson will release the very same cargo to Atlantic (terms of sale unspecified) in consideration for payments totaling $257,120.[4] Ex. 31B. An October 2001 letter from Axelsson to Quinby, requesting assistance in obtaining payment for the cargo, indicates that whatever transaction was memorialized in the Mayflower invoices to Watkins remained unknown to Axelsson:
H & L Axelsson, Inc., Mayflower, OU Watkins, and Atlantic Fish Market are all involved in this deal. Our vessels produced the product. Mayflower acted as our agent/shipper to sell/ship the product to Atlantic Fish Market/OU Watkins. Atlantic Fish Market, Inc. was the buyer. OU Watkins is listed as the notify address. We agreed to pay Mayflower a percentage for the product sold. This has not changed. We are still awaiting payment for this product. The only change we requested from Boris was to pay H & L Axelsson, Inc. directly rather than pay it through Mayflower. (Ex. 34.)
17. In February 2002, Sorkin wrote to Watkins stating that Atlantic had "received information that it was allegedly paid monies in the amount of $357,120.00 for certain herring, which was previously delivered by H & L Axelson [sic], Inc." and requesting confirmation from Watkins of this payment. (Ex. 35.) In reply, Watkins stated that "the payment to Atlantic Fish Market in the amount of USD 357,120.00 for HERRING ocean run has not been paid yet due to some circumstances." (Ex. 40.)
18. In the fall of 2001 and continuing into 2002, the period of time following the delivery of this cargo to Estonia, Atlantic was engaged in a joint venture with Watkins through entities referred to as Atlas and Front Holdings for the construction and operation of a fish processing facility in Estonia. (Sorkin, Day 2, at 28-32; Gelfand, Day 2, at 86-90.) A potential investor in this joint venture, Leon Gelfand, was informed by Sorkin in January 2002 that Sorkin "had $400,000 worth of [frozen herring] in Estonia which he would sell and the proceeds would be used to build the plant." (Gelfand, Day 2, 90-91.)[5] I infer that this fish is the same cargo disputed in the present action.
Conclusions of Law
1. Admiralty jurisdiction is based on 46 U.S.C. § 1333(1) and Fed.R.Civ.P. 9(h). The Court also has diversity jurisdiction under 28 U.S.C. § 1332(a).
2. During the spring and summer of 2001, Atlantic and Mayflower were both engaged in shipping frozen herring under five bills of lading from Everett, Massachusetts to Estonia. The evidence presented is not sufficient to conclude that a *197 joint venture existed between Mayflower and Atlantic. See Petricca Development Limited Partnership v. Pioneer Development Co., 214 F.3d 216, 220 (1st Cir.2000) (setting out factors under Massachusetts law for finding intent to form a joint venture); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 623-24, 550 N.E.2d 127 (1990) (same). To the contrary, there is evidence that Mayflower was acting as an agent for Axelsson, the seller of the cargo, while Atlantic was engaged in a joint venture with Watkins, the buyer.
3. Although not liable as joint venturers, Atlantic and Mayflower are jointly and severally liable for EIMSKIP's unpaid freight and collection costs.
4. Atlantic orally booked the ocean carriage of the first twenty-three containers at issue, orally arranged to have the subsequent shipment of nine containers booked, and orally agreed to pay their freight. These oral contracts are enforceable in admiralty. Kossick v. United Fruit Co., 365 U.S. 731, 734 n. 4, 81 S.Ct. 886, 6 L.Ed.2d 56 and associated text (1961) ("oral contracts are generally regarded as valid by maritime law"); Fontneau v. Town of Sandwich, 251 F.Supp.2d 994, 1001 (D.Mass.2003) ("maritime contracts do not require writing for validity").
5. As the shipper named on the bills of lading, Mayflower is independently liable as a matter of law for the unpaid freight charges and collection costs. The bills of lading at issue here do not specify who is responsible for the freight charges.[6] In Louisville & N.R.R. v. Central Iron & Coal Co., the Supreme Court held that there is a rebuttable presumption that a shipper is liable for freight charges:
Ordinarily, the person from whom the goods are received for shipment assumes the obligation to pay the freight charges; and his obligation is ordinarily a primary one.... For the shipper is presumably the consignor; the transportation ordered by him is presumably on his own behalf; and a promise by him to pay therefor is inferred (that is, implied in fact).... But this inference may be rebutted, as is the case with other contracts. It may be shown, by the bill of lading or otherwise, that the shipper of goods was not acting on his own behalf; that this fact was known by the carrier; that the parties intended not only that the consignee should assume an obligation to pay the freight charges, but that the shipper should not assume any liability whatsoever therefor; or that he should assume only a secondary liability.
Louisville & N.R.R. v. Central Iron & Coal Co., 265 U.S. 59, 67-68, 44 S.Ct. 441, 68 L.Ed. 900 (1924). Here, Mayflower's role as both the shipper and the named consignee only strengthens the presumption of liability, as does Mayflower's "exercise of dominion and control over the shipment." See States Marine Int'l, Inc. v. Seattle-First National Bank, 524 F.2d 245, 248 (9th Cir.1975).
6. However, Atlantic's multiple representations to both Mayflower and EIMSKIP that it would be liable for the cargo; the course of dealings among the parties prior to the shipments at issue (in particular, Atlantic's payment of the two prior invoices); and EIMSKIP's decision to lift the hold on the cargo after speaking to Sorkin, are sufficient to rebut the presumption *198 that Mayflower has primary liability for the charges. Accordingly, Mayflower will be liable for freight charges and pre-judgment interest only in the event that EIMSKIP fails to collect from Atlantic.
7. Additionally, on the basis of these same representations, I conclude that Atlantic is liable to Mayflower for indemnification and contribution to the extent that EIMSKIP collects freight charges and pre-judgment interest from Mayflower.
8. Under the backside terms of the bill of lading,[7] Mayflower and Atlantic are jointly and severally bound to "defend, indemnify and hold harmless the Carrier against all and any cost incurred by the Carrier in exercising its rights" to collect freight charges." Such costs are not the subject of any ancillary agreement, oral or written, among the parties. Hence, Atlantic and Mayflower are jointly and severally liable for such costs, including attorneys' fees, and Mayflower's cross-claims for contribution and indemnification are denied as to these costs.
9. In sum, judgment shall be entered for EIMSKIP against Atlantic and Mayflower jointly and severally for unpaid freight of $91,840 plus pre-judgment interest, subject to the limitation noted above that Mayflower be liable only in the event that EIMSKIP is unable to collect from Atlantic. Judgment shall be entered for Mayflower against Atlantic on its cross-claims for indemnity and contribution. Judgment shall be entered against Atlantic and Mayflower jointly and severally for costs and attorneys' fees.
10. No evidence having been presented on Atlantic's counter-claim for abuse of process, and EIMSKIP's claims having been found meritorious, judgment shall be entered for EIMSKIP.
It is so ordered.
NOTES
[1] Axelsson is not listed on any of the bills of lading, and EIMSKIP was never informed of Axelsson's existence. (Quilty-Tanner, Day 1, at 69.)
[2] These alleged problems concerned the quality of the fish and deficiencies in the export documents. It is undisputed that the health certificates for all five shipments were falsified to indicate that the source of the fish was not Axelsson (which lacked European Union certification) but rather a different producer, Lund's Fisheries, Inc. Sorkin testified that, upon discovering the problems with the paperwork, he informed EIMSKIP and Quinby that he had "nothing to do anymore with this cargo." (106:15-16.) However, Sorkin also testified that he knew from the beginning that Quinby was shopping around for a health certificate, and that he paid the freight charges for the first and second shipments despite his knowledge that the health certificates for those shipments had been falsified. It is undisputed that the cargo made entry into Estonia regardless of any alleged problems with the paperwork.
[3] According to Quinby, the fish that comprised the fifth shipment were "still swimming" on July 18, 2001 and thus were not mentioned in the fax.
[4] The Court takes judicial notice of the pendency of another civil action in this District, H & L Axelsson, Inc. v. Atlantic Fish Market, Inc., 02-CV-10927-RGS, brought by Axelsson to recover payments for the cargo at issue.
[5] The Court takes judicial notice of the pendency in this District of Gelfand v. Sorkin, 03-CV-12571-PBS, brought by Gelfand to recover $500,000 that he allegedly invested in this venture.
[6] As noted above, terms and conditions provide a broad definition of "Merchant" and state that "[t]he Merchant shall defend, indemnify and hold harmless the Carrier against all and any cost incurred by the Carrier in exercising its rights under this clause." However, nowhere on the bill of lading does it specify when, or by whom, the payment should be made.
[7] Quinby conceded that the backside terms and conditions of the bill of lading govern this dispute, and it is therefore unnecessary to determine whether (as Quilty-Tanner testified) he received a hard copy of the bill of lading or merely a fax of the front side.
| {
"pile_set_name": "FreeLaw"
} |
290 S.W.3d 1 (2008)
Nadine WILSON, Appellant,
v.
DARDANELLE DISTRICT OF the DISTRICT COURT of YELL COUNTY, Appellee.
No. 08-901.
Supreme Court of Arkansas.
December 19, 2008.
Sanford Law Firm, PLLC, by: Josh Sanford and Vanessa Kinney, Russellville, AR, for appellant.
Ralph C. Ohm, Hot Springs, AR, for appellee.
PAUL E. DANIELSON, Justice.
This appeal arises from an order of the Yell County Circuit Court denying a petition for writ of mandamus filed by appellant Nadine Wilson against appellee Dardanelle District of the Yell County District Court ("district court"). On appeal, Wilson argues that the circuit court erred in ruling that Wilson could not use the small-claims division of the district court in her efforts to collect small-claims judgments. Wilson further contends that the circuit court erred in ruling that she would be required to be represented by counsel to *2 collect those judgments. We affirm the circuit court's order.
Wilson owns a collection agency called Seneca Collection Agency, Inc. and Sunstone Judgment Recovery (Sunstone), which is a "judgment-recovery" business. Acting individually through Sunstone, Wilson became the owner of assignment of judgments in the following cases: (1) Lawrence Vaughn d/b/a Vaughn's Truck & Equipment v. Daniel Warren d/b/a Daniel Warren Trucking, Case No.2005-430, in the amount of $1,
Subsequently, on April 20, 2007, the district court entered an order setting aside the assignments. While not at issue in the instant case, Wilson appealed one case, Roger and Louise Burns v. Buddy Turner d/b/a Circle M. Movers, CV 2007-45, to circuit court. On May 30, 2007, the circuit court found the assignment of judgment in the Burns case valid and set aside the district court's order setting aside the assignment in the Burns case. In the district court, Wilson then filed a motion to reconsider setting aside the assignments, noting the circuit court's order setting aside the judgment. On July 20, 2007, the district court denied Wilson's motion to reconsider.
On October 1, 2007, Wilson filed a petition for writ of mandamus in the circuit court and alleged (1) that she had a right to collect the judgments pursuant to Arkansas Code Annotated § 16-65-120 (Repl.2005), and (2) that the district court misinterpreted Rule 10(d)(4) of the District Court Rules and section 4 of Administrative Order 18. Further, Wilson averred that she was entitled to declaratory judgment under Ark.Code Ann. § 16-111-104 (Repl.2006), on the grounds that the language of section 4(b) does not prevent her from filing a complaint under Arkansas Rule of Civil Procedure 3(a). In her prayer for relief, Wilson requested that the circuit court enter a declaratory judgment in addition to a writ of mandamus ordering the district court "to interpret and apply correctly all relevant laws." On October 25, 2007, the district court answered the writ, denying the allegations in Wilson's petition. Wilson filed a first-amended petition for writ of mandamus on November 13, 2007. The district court answered, pleading affirmative defenses, on November 27, 2007.
On February 5, 2008, the circuit court held a hearing on Wilson's petition for writ of mandamus. On cross-examination, Wilson stated that she enforced the judgment rather than collected the judgment and that there was a "fine line" between collection and enforcement. She further admitted that she typically received forty percent of what she recovered. After hearing testimony and arguments, the circuit court made the following conclusion:
There [are] two concepts that the court is concerned with. One is as you both have pointed out that Administrative Order 18(4)(b) provides that no action may be brought in Small Claims Court by any collection agency or an assignee of a claim. And further we have the concept that Mr. Ohm [representing Defendant] has pointed out that a person not licensed to practice law in the state can't represent another, and there is Arkansas case law and part of the Code Annotated that deals with that.
The Court is going to find in this case that Ms. Wilson is a collection agency or an assignee and that she cannot use the court to collect debts on these judgments. Accordingly, your petition for mandamus will be denied.
On March 11, 2008, the circuit court denied Wilson's petition for writ of mandamus and entered an order, finding that Wilson was engaged in the practice of acting as a collection agency and did not *3 have the authority to use the district court in her efforts to collect small-claim judgments in the small-claims division of the district court. Further, the circuit court found that Wilson was not a licensed attorney, was acting as a collection agent, and should have been required to be represented by counsel in order to collect district-court judgments in the civil division of the district court. Subsequently, on May 13, 2008, Wilson filed a motion for relief from the judgment pursuant to Arkansas Rule of Civil Procedure 60(a) (2008), and on May 23, 2008, the circuit court denied Wilson's Rule 60 motion. From the March 11 order, Wilson now brings her appeal.
For her first point on appeal, Wilson argues that the circuit court erred in ruling that she acted as a collection agency and that she was prohibited from "enforcing her judgments." Wilson contends that, under section 4(b) of Administrative Order 18, she should not be prohibited from enforcing her judgments in the small-claims division of a district court. In response, the district court asserts that the circuit court correctly determined that Wilson engaged in the practice of acting as a collection agency. The district court asserts that the circuit court properly concluded that Wilson attempted "to collect judgments on behalf of third persons on a contingency fee basis." Further, the district court avers that Wilson "attempted to get around this prohibition by having the plaintiffs sign an assignment of judgment," which, the district court maintains, "was nothing more than an attempt to avoid Administrative Order No. 18." The standard of review on a denial of a writ of mandamus is whether the circuit court abused its discretion. Dobbins v. Democratic Party of Arkansas, 374 Ark. 496, 288 S.W.3d 639 (2008).
The issue is whether Wilson, while engaging in the practice of her judgment-recovery business, acted as a collection agency. Section 4(b) of Administrative Order 18 provides in pertinent part:
4. Small Claims Division. The small claims division shall have the same jurisdiction over amounts in controversy as provided in subsection 3 of this administrative order. Special procedural rules governing actions filed in the small claims division are set out in Rule 10 of the District Court Rules. The following restrictions apply to litigation in the small claims division:
....
(b) Entities restricted from bringing actions. No action may be brought in the small claims division by any collection agency, collection agent, or the assignee of a claim or by any person, firm, partnership, association, or corporation engaged, either primarily or secondarily, in the business of lending money at interest. "Credit bureaus and collection agencies," by definition, shall include those businesses that either collect delinquencies for a fee or are otherwise engaged in credit history or business.
This issue involves the interpretation of our court rules. The first rule in considering the meaning and effect of a statute or rule is to construe it just as it reads, giving words their ordinary and usually accepted meaning in common language. Stanley v. Ligon, 374 Ark. 6, 285 S.W.3d 649 (2008). Court rules are construed by the same means and canons of construction used in statutory interpretation. Id.
Section 4(b) defines "collection agencies" as "those businesses that either collect delinquencies for a fee or are otherwise engaged in credit history or business." Here, Wilson admitted that, although she believed that she "enforce[d]" a judgment *4 rather than "collected" a judgment, she nevertheless received forty percent of that judgment as "an agreement between the judgment creditor and [her]." Thus, because Wilson "collect[ed]" a "delinquenc[y] for a fee" under section 4(b), she fits the definition of a collection agency, which is restricted from bringing an action in the small-claims division of the district court.
Further, Wilson contends that she was assigned the judgment under Ark.Code Ann. § 16-65-120, which provides that a person or a party may transfer or sell a judgment or cause of action at any time after the lawsuit has been filed. She asserts that once a judgment was assigned to her, she had every right to collect it. However, under section 4(b), no "assignee of a claim" may bring an action in the small-claims division. Here, Wilson repeatedly admitted that she was assigned these claims. While she takes issue with the term of what she collected, we are left with the language of section 4(b), which calls for the collection of "delinquenc[ies]." A delinquency is defined as "[a] debt that is overdue in payment." Black's Law Dictionary 460 (8th ed.2004). We interpret "delinquency" to include the judgments or debts in this case that Wilson collected. Therefore, based upon our interpretation of section 4(b) of Administrative Order 18, we hold that the circuit court properly ruled that Wilson engaged in the practice of acting as a collection agency.
For her second point on appeal, Wilson argues that even if she were a collection agency, then she was not "bringing an action" under section 4(b), but rather enforcing a judgment. Specifically, Wilson contends that she is not prohibited from acting in the district court because her act of filing acknowledgments of the assignment, as well as writs of garnishment, is not "an action" under section 4(b). The district court responds and argues that the circuit correctly found that Wilson was prohibited from using the small-claims court to collect judgments. Specifically, the district court avers that Wilson attempted to circumvent the process by attempting to assign a small-claim plaintiff's claim to herself and to name herself as a real party of interest.
However, the circuit court did not specifically rule on this issue of whether Wilson brought an action under section 4(b). Similarly, in her third point on appeal, Wilson raises the issue of whether she was a new party, under Rule 10(d)(4) of the District Court Rules, prohibited from bringing an action into the district court. In fact, she concedes in her brief that the circuit court did not specifically cite to Rule 10(d)(4) in its ruling. We have held that we will not review a matter on which the circuit court has not ruled, and a ruling should not be presumed. See Stilley v. University of Arkansas at Ft. Smith, 374 Ark. 248, 287 S.W.3d 544 (2008). Accordingly, we decline to reach the merits of Wilson's second and third points on appeal.
Finally, Wilson argues that the circuit court erred in ruling that she should be required to be represented by counsel in order to collect district-court judgments in the small-claims and civil divisions of the district court. Specifically, Wilson claims that, regardless of whether she acted as a collection agency, she is entitled to represent herself in the enforcement of her judgments in the small-claims and civil divisions of the district court.
We have previously discussed that, in enforcing her judgments, Wilson acted as a collection agency, which is prohibited under section 4(b). In their briefs, both Wilson and the district court discuss whether she engaged in the practice of law. However, the circuit court did not make a specific ruling on that issue, and *5 therefore, we are precluded from delving into the question. See Stilley, supra.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
NOT DESIGNATED FOR PUBLICATION
No. 120,219
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SAMUEL L. REED,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed April 24,
2020. Affirmed.
Kristin B. Patty, of Wichita, for appellant, and Samuel L. Reed, appellant pro se.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.
PER CURIAM: Samuel L. Reed appeals the district court's summary denial of his
untimely K.S.A. 60-1507 motion. He argues that he is entitled to an evidentiary hearing
on the merits of his motion because he showed manifest injustice to overcome the one-
year time limit for filing such a motion. Because the motion, files, and records of the case
conclusively show that Reed has no right to relief, we affirm the district court.
1
Almost ten years later, Reed asks to withdraw his pleas in a 2009 prosecution.
Reed was convicted upon pleas of no contest to five of seven charges stemming
from a September 2008 arrest:
• two counts of criminal threat, each a person felony;
• one count of battery against a law enforcement officer, a person felony;
• one count of criminal possession of a firearm by a juvenile, a nonperson
felony; and
• one count of criminal damage to property, a nonperson misdemeanor.
Reed wanted to enter pleas "[b]ecause I'm willing to be found guilty and I no longer want
to fight the charges." Reed was 18 years old with 11 years of education at the time of his
pleas. He acknowledged the rights he was waiving and did not have any questions. The
district court found Reed "understands the charges against him, the consequences of a
plea of no contest, and that he has knowingly, intelligently, freely and voluntarily waived
his rights in this matter."
Reed had two prior convictions from 2006 and 2007 for criminal possession of a
firearm by a juvenile—a nonperson misdemeanor and a nonperson felony, respectively.
The parties anticipated Reed's criminal history score would be G. Reed's attorney
explained to him how his criminal history score would determine his presumptive
sentence.
Reed told the district court that he believed his lawyer did a good job counseling
and assisting him, and he was satisfied with his attorney's advice and help. He also stated
he was satisfied with the way the courts had treated him. Based on the State's factual
summary of the basis for the charges, Reed entered his pleas of no contest. The district
court then found there was an enough factual basis to find Reed guilty of the charges and
then dismissed the remaining two charges. Reed was released on his own recognizance—
2
pending sentencing and after agreeing to conditions of bond that included gang
nonassociation conditions.
The court found Reed's criminal history score was G and followed the plea
agreement in sentencing Reed to 26 months in prison. The court granted Reed probation
for 24 months with conditions that included the gang nonassociation conditions. The
court told Reed of his right to appeal. Reed did not appeal.
After he was sentenced, Reed's probation was revoked, modified, and reinstated.
Then in March 2011, Reed's probation was revoked based on a new conviction for
attempted first-degree murder. The court ordered Reed to serve his prison sentence. Reed
did not appeal.
In November 2013, Reed filed a pro se "Motion to Withdraw Plea to Correct
Manifest Injustice." The court summarily denied Reed's motion, stating: "Defendant
failed to file his motion in a timely manner. Having proffered no substantive grounds
showing the existence of incompetent counsel or manifest injustice the motion is denied."
Reed unsuccessfully appealed the district court's denial of his motion to withdraw
his pleas. See State v. Reed, No. 111,663, 2015 WL 4716290, at *5 (Kan. App. 2015)
(unpublished opinion) (Reed I). A panel of this court determined that because Reed could
not meet his burden to show excusable neglect to allow his late motion to withdraw his
plea under K.S.A. 2012 Supp. 22-3210, the district court properly determined the motion
was untimely. 2015 WL 4716290, at *5.
About 18 months after the mandate was issued in Reed I, Reed filed this 60-1507
motion. The district court in January 2018 summarily denied the motion.
3
We find no manifest injustice that would allow an untimely motion.
Reed argues the district court erred when it summarily denied his 60-1507 motion.
He wants this court to either grant his motion or remand it to the district court for an
evidentiary hearing. The State contends Reed's motion presented no basis for a finding of
manifest injustice to justify the out-of-time filing and argues the district court's summary
dismissal should be affirmed. We agree with the State.
A defendant has one year from when a conviction becomes final to file a motion
under K.S.A. 60-1507(a). K.S.A. 2018 Supp. 60-1507(f)(1). Because Reed did not file a
direct appeal, he had until mid-December 2010 to file his motion under K.S.A. 60-1507.
The one-year time limitation for bringing an action under K.S.A. 60-1507(f)(1) may be
extended by the district court, but only to prevent a manifest injustice. K.S.A. 2018 Supp.
60-1507(f)(2). Courts must dismiss a motion as untimely filed if, after inspection of the
motion, files, and records of the case, the court determines that the time limitations have
been exceeded and dismissing the motion would not equate with manifest injustice.
K.S.A. 2018 Supp. 60-1507(f)(3). A defendant who files a motion under K.S.A. 60-1507
outside the one-year time limitation in K.S.A. 60-1507(f) and fails to affirmatively assert
manifest injustice is procedurally barred from maintaining the action. State v. Trotter,
296 Kan. 898, 905, 295 P.3d 1039 (2013).
Reed concedes his 60-1507 motion was untimely, but argues substantial issues of
law and fact, as well as a colorable claim of actual innocence, warrant consideration of
his motion on the merits. He argues the "totality of the circumstances" establish manifest
injustice. See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014). But Reed
argues for the wrong standard in his motion—something he tries to correct on appeal.
The Legislature amended K.S.A. 60-1507(f)(2) to define manifest injustice. Courts
are now "limited to determining why the prisoner failed to file the motion within the one-
4
year time limitation or whether the prisoner makes a colorable claim of actual
innocence." K.S.A. 2018 Supp. 60-1507(f)(2)(A). We are thus restricted to considering
why he failed to file his motion within the statutory time limit or whether he made a
colorable claim of actual innocence.
Here, Reed uses a similar argument that he used in the appeal of his first K.S.A.
60-1507 motion. He again claims that he was embroiled with his defense in his attempted
murder case. A panel of this court found that Reed's argument ignored relevant
overlapping timelines in his criminal cases, which showed Reed had about nine months
between his 2009 convictions and his 2010 charge of attempted first-degree murder.
Similarly, Reed was sentenced in the attempted murder case in 2011. But he waited
almost two years before moving to withdraw his pleas. "[T]he fact that Reed was charged
with, and convicted of, attempted first-degree murder does not meet the definition of
excusable neglect [. . .], and therefore, cannot be used as a justification for failing to file
his motion in a timely manner." 2015 WL 4716290, at *4.We find the panel's findings on
the overlapping timelines persuasive here. We, too, conclude these reasons cannot justify
an untimely motion.
Reed tries to lessen the impact on this appeal of the prior panel's criticisms by now
claiming to us that he did not timely file his 60-1507 motion because he was "attending
to" his minor son, working, and adhering to his probation conditions after his 2009
convictions. The record paints a different picture. We see two probation revocations here
and his conviction for attempted murder—all during his original term of probation. We
see no evidence of diligent concentration on his obligations and family responsibilities.
With this record, we simply cannot conclude that he has shown that it would be
manifestly unjust for us to rule he is not entitled to a hearing on his motion.
We must point out another aspect of this case. The mandate after his appeal of his
first 60-1507 motion was issued by this court in April 2016. Reed did not file his motion
5
under K.S.A. 60-1507 until October 2017—18 months later. His filing here is still outside
the one-year time limit in K.S.A. 2018 Supp. 60-1507(f)(1). Reed fails to explain the 18-
month time gap.
Reed does not claim he is innocent.
In this context of considering late motions for relief from criminal convictions, the
Legislature has defined actual innocence to mean that the prisoner must "show it is more
likely than not that no reasonable juror would have convicted the prisoner in light of new
evidence." K.S.A. 2018 Supp. 60-1507(f)(2)(A). A claim is "'colorable' if there is
'sufficient doubt' about [a movant's] guilt 'to undermine confidence' in his [or her]
conviction 'without the assurance' that the conviction 'was untainted by constitutional
error.'" Beauclair v. State, 308 Kan. 284, 303, 419 P.3d 1180 (2018).
But Reed does not claim that it is more likely than not that no reasonable juror
would have convicted him considering new evidence, nor does he even claim he is
actually innocent. He merely makes a conclusory statement that he asserted a colorable
claim of actual innocence and then proceeds to argue the merits of his motion. Reed
requests only that he be allowed to withdraw his plea and move forward with a trial.
This is not enough to show that he would not have been convicted based on new
evidence, or to show that there is enough doubt to undermine confidence in his 2009
convictions.
Reed fails to establish that consideration of the merits of his untimely motion is
necessary to prevent a manifest injustice.
6
Uncounseled arguments
Turning to the issues raised by Reed in his pro se brief, we see no grounds to grant
relief. He raises three points. First, he claims that K.S.A. 22-4506 requires a court to
appoint an attorney for him and hold a preliminary hearing on his motion. He is mistaken.
Second, Reed suggests that the court could have used a teleconference to resolve his
claims and it was error for the court not to do so. We see no error here because we see no
need for a teleconference in a case in which the motion was barred, and there is no
showing of manifest injustice so the court could waive the statutory bar. Finally, he
contends that just because he made a claim that could require relief, he is entitled to a
hearing. We hold that argument ignores too much law and we are unconvinced. We will
address the points in that order.
While it is true that K.S.A. 22-4506 applies to collateral attacks on criminal
convictions, it does not apply to all. In some cases, timely filed motions raise serious
issues that require a deeper inquiry by the court. In those cases, counsel are appointed and
at least a preliminary hearing is held to see if evidence is required. But in cases that raise
only superficial issues that are meritless, there is no requirement by the statute that an
attorney be appointed and the court hold a preliminary hearing. Said another way, the
statute is not mandatory in every case. It does set the procedure in some. For untimely
motions that have no showing of manifest injustice, the statute simply does not apply.
That is true here.
After all, K.S.A. 60-1507(b) directs a court to screen these motions and dismiss
them if they are meritless as shown by the files and records of the case. And then K.S.A.
60-1507(f)(3) mandates that the court dismiss untimely motions that do not show
manifest injustice. That statute controls this case.
7
Next, we turn to Reed's argument about teleconferences. He cites Fischer v. State,
296 Kan. 808, 295 P.3d 560 (2013). Fischer offers him little support. The Supreme Court
held that when a court finds a substantial issue requiring an evidentiary hearing and the
defendant's presence is necessary to help resolve issues of fact, the defendant must appear
and can do so through a teleconference. 296 Kan. 808, Syl. ¶ 5. The Supreme Court Rules
allow teleconferences to achieve this. See Supreme Court Rule 183(h) (2019 Kan. S. Ct.
R. 228) and Rule 145 (2019 Kan. S. Ct. R. 217).
But there were no substantial questions of fact for the court to resolve here. This
was an untimely motion that failed to show manifest injustice. The Fischer rule does not
apply to Reed's motion.
As for Reed's last point, he seems to contend that just because he made this
argument, the court should consider it. He ignores the time limits placed by the
Legislature for prisoners to file these motions. The statute, K.S.A. 60-1507, creates a
procedure for the courts to follow and defines certain important concepts, such as
manifest injustice. Timely filed motions are screened by the court—some are set for a
preliminary hearing, and some for evidentiary hearings. But untimely filed motions are
not to be considered unless the prisoner can show manifest injustice. We grant no relief to
Reed.
Affirmed.
8
| {
"pile_set_name": "FreeLaw"
} |
540 U.S. 837
CRUZ-GARCIAv.UNITED STATES.
No. 02-10769.
Supreme Court of United States.
October 6, 2003.
1
Appeal from the C. A. 5th Cir.
2
Certiorari denied. Reported below: 61 Fed. Appx. 918.
| {
"pile_set_name": "FreeLaw"
} |
208 F.Supp. 508 (1962)
In the Matter of Herman DAVIS, Bankrupt.
No. 61-B-921.
United States District Court E. D. New York.
September 20, 1962.
*509 Louis J. Castellano, Brooklyn, N. Y., referee in bankruptcy.
Jacob Frummer, Brooklyn, N. Y., for bankrupt.
Michael Friedman, New York City, for objecting creditor, Brooklyn Postal Employees Credit Union.
BARTELS, District Judge.
Petition by the bankrupt for review of an order of the Referee in Bankruptcy denying the bankrupt a discharge on the grounds that the bankrupt failed to keep books and records and to explain satisfactorily the loss of assets or deficiency of assets to meet his liabilities.[1]
On November 16, 1961 the bankrupt, then an employee of the Post Office Department, filed a voluntary petition in bankruptcy, the schedules annexed to which listed no assets and unsecured liabilities in the sum of $25,871.16. Hearings conducted by the Referee revealed that the bankrupt had gambled away not only his salary (approximately $9,000 per annum) but also sums borrowed from the Brooklyn Postal Employees Credit Union, commercial lenders, friends, relatives and fellow employees. In fact, the bankrupt stated that he lost approximately $12,750 gambling at local New York race tracks during a six-month period in the year immediately preceding the filing of his voluntary petition. He admittedly maintained no records of the dates or amounts of his wagers, the tracks at which he wagered or the horses on which he wagered. The Referee found that gambling having become a "major activity" of the bankrupt during 1961 he was required to keep complete records of his gambling transactions, and that the bankrupt had failed to explain the loss of assets satisfactorily; accordingly, he denied the bankrupt a discharge.
In his decision the Referee relied upon Klein v. Morris Plan Industrial *510 Bank, 2 Cir., 1942, 132 F.2d 809 (144 A.L.R. 1278); Gaudet v. Cowen, 5 Cir., 1961, 297 F.2d 227, and Crider v. Jordan, 4 Cir., 1958, 255 F.2d 378. While these cases do not square exactly with the case at bar, they do enunciate the applicable principles. In Klein the court pointed out that the failure of the bankrupt to keep records of his gambling activities deprived his estate of the opportunity to recoup his gambling losses, pursuant to New York Penal Law, McKinney's Consol.Laws, c. 40 § 994. Although it apparently rested its decision upon this ground, it added that "* * * we can hardly take judicial notice of what the practice is among habitual gamblers as to keeping records of their losses." (Id. at 811 of 132 F.2d) In Gaudet the bankrupt lost his funds not only through gambling but also through real estate speculation and other activities; nevertheless the court denied the discharge, stating that the bankrupt had "failed to make such disclosure as is a condition precedent to discharge". (Id. at 228 of 297 F.2d) In Crider the bankrupt sustained substantial gambling losses and also certain casualty and other losses with respect to which he kept no records, claiming that they did not relate to his business transactions. The court rejected this defense, remarking that these transactions were not personal matters disconnected from the bankrupt's business, and particularly indicating that its decision was not based upon the Virginia recoupment statute which was similar to the New York statute relied upon in Klein. From these cases there emerges the principle that the loss of funds through gambling does not automatically excuse the bankrupt from keeping books or records. When gambling has developed into a major financial operation or occupation of the bankrupt, he must justify his failure to keep books and satisfactorily explain his loss of assets. He cannot escape upon the ground that they are personal expenses.
The bankrupt relies upon In re Wilde, D.C.N.Y.1942, 48 F.Supp. 230, wherein a discharge was granted to one who gambled away his assets and who kept no books or records. In that case the referee, after going into the matter in detail and hearing the bankrupt and corroborating witnesses, found that the bankrupt had fully and satisfactorily accounted for his gambling losses; the district court consequently declined to hold such finding "clearly erroneous". In the present, case, however, the Referee was not so satisfied. The case, therefore, is no authority for the bankrupt's contention that a person who gambles does not, as a matter of law, have to keep books and records.
Section 14, sub. c of the Bankruptcy Act (note 1, supra) requires a bankrupt to maintain books and records of his financial condition or in lieu thereof to explain satisfactorily his failure to do so. The Referee was correct in holding that gambling had, at least during 1961, become the bankrupt's major activity[2], and that he was subject to the 14, sub. c requirement that he keep books and records. The bankrupt having failed to keep such books and records, the issue remains whether or not the bankrupt has given a satisfactory explanation for such failure. Unlike In re Wilde, supra, the bankrupt offered no corroborating testimony or details as to his losses; there was no explanation for his failure to keep books, records or evidence of his losses except that they were gambling losses. This explanation by itself is insufficient. A perusual of the record reveals that even though he testified that he kept a continuous account of loans and payments, the exhibit he produced as such record was a schedule apparently prepared no earlier than October, 1961, one month before the filing of his petition. "The purpose and intent of the Bankruptcy Act is to make the privilege of discharge dependent on a true presentation of the debtor's financial affairs. His books should indicate an honest effort to reflect his entire business." In re Schechter, D.C.N.Y.1942, 43 F.Supp. 1014.
*511 Under the circumstances, the Referee acted reasonably and the Court would not be justified in reversing his determination as "clearly erroneous".
Settle order within ten (10) days on two (2) days' notice.
NOTES
[1] Section 14, sub. c of the Bankruptcy Act (11 U.S.C.A. § 32, sub. c) provides in part as follows:
"The court shall grant the discharge unless satisfied that the bankrupt has * * * (2) destroyed, mutilated, falsified, concealed, or failed to keep or preserve books of account or records, from which his financial condition and business transactions might be ascertained, unless the court deems such acts or failure to have been justified under all the circumstances of the case;"
and further provides:
"(7) has failed to explain satisfactorily any losses of assets or deficiency of assets to meet his liabilities * * *".
[2] During that year his gambling losses were more than twice his take home pay.
| {
"pile_set_name": "FreeLaw"
} |
T.C. Memo. 1999-253
UNITED STATES TAX COURT
SAID MAHMOUD KARARA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 6547-98, 6548-98. Filed July 29, 1999.
Said Mahmoud Karara, pro se.
Ross M. Greenburg, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
COUVILLION, Special Trial Judge: These consolidated cases
were heard pursuant to section 7443A(b)(3)1 and Rules 180, 181,
and 182.
1
Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
- 2 -
Respondent determined deficiencies in petitioner's Federal
income taxes and additions to tax as follows:
Additions to Tax
Year Deficiency Sec. 6651(a) Sec. 6654(a)
1993 $2,696 $674.00 $112.93
1994 1,489 372.25 -0-
The issues for decision are: (1) Whether the period of
limitations under section 6501(a) bars respondent from making
assessments against petitioner for the years 1993 and 1994;
(2) whether, for 1993 and 1994, petitioner realized a gain,
pursuant to section 1001(a), on the redemption of certain shares
of Citizens Federal Bank Non-Cumulative Preferred Stock (Citizens
Federal Stock); (3) whether, for 1993 and 1994, petitioner was
engaged in a trade or business activity under section 162(a);
(4) whether petitioner is liable for the addition to tax under
section 6651(a) for failure to file returns for 1993 and 1994;
and (5) whether, for 1993, petitioner is liable for the addition
to tax under section 6654(a) for failure to make estimated tax
payments.2
2
Issue number 1 was presented by petitioner at trial by
way of a motion to dismiss for lack of jurisdiction on the ground
that respondent was barred by the period of limitations under
sec. 6501(a). Respondent filed an objection, affirmatively
alleging that the notices of deficiency were not barred because
petitioner did not file Federal income tax returns for the 2
years at issue. The Court denied petitioner's motion to dismiss
(continued...)
- 3 -
FINDINGS OF FACT
Some of the facts were stipulated, and those facts, with the
annexed exhibits, are so found and are incorporated herein by
reference. At the time the petition was filed, petitioner's
legal residence was Naples, Florida.
In 1993, petitioner earned wages of $17,751 working in a
convenience store at Naples, Florida. Petitioner also realized
$143 of interest income and $4,896 of Social Security income in
1993. Finally, petitioner received gross receipts of $5,277 from
the redemption of 209 shares of Citizens Federal Stock.
In 1994 petitioner continued to be employed at the same
convenience store in Naples, Florida, and earned wages of
$14,815. Petitioner also realized $60 of interest income and $21
of dividend income in 1994. Finally, petitioner realized gross
receipts of $1,287 from the redemption of 51 shares of Citizens
Federal Stock in 1994.
Petitioner did not file income tax returns for 1993 and
1994. The Internal Revenue Service (IRS) issued the notices of
2
(...continued)
for the reason that the statute of limitations is not a
jurisdictional question but is a defense in bar or an affirmative
defense to be considered on the merits. See United Bus. Corp. of
Am. v. Commissioner, 19 B.T.A. 809, 831 (1930), affd. 62 F.2d 754
(2d Cir. 1933). The Court agreed that petitioner's statute of
limitations defense would be considered on the merits.
- 4 -
deficiency based on reports filed by payers of income. The
notices of deficiency were issued on January 28, 1998.
OPINION
1. Whether Respondent Is Barred by the Section 6501(a) Period of
Limitations
Petitioner did not file Federal income tax returns for 1993
and 1994. The notices of deficiency for 1993 and 1994 were both
issued on January 28, 1998. Petitioner contends that respondent
is barred from making assessments against him because the notices
of deficiency were issued more than 3 years from the dates the
taxes were due for each of the years at issue. Petitioner
contends the 1993 taxes were due on January 1, 1994, and the 1994
taxes were due on January 1, 1995. Since the notices of
deficiency were issued more than 3 years from those dates,
petitioner contends that respondent is barred from making
assessments against him.
Section 6501(a) provides generally that taxes imposed by the
Internal Revenue Code shall be assessed within 3 years after the
return is filed, whether or not such return was filed on or after
the date prescribed. Section 6501(c)(3) provides that, in the
case of failure to file a return, the tax may be assessed, or a
proceeding in Court for the collection of such tax may be begun
without assessment at any time.
- 5 -
The Court rejects petitioner's contention that respondent is
barred from making assessments against him for the 2 years in
question. Since no returns were filed, section 6501(c)(3)
provides expressly that assessment may be made at any time.
Moreover, petitioner is in error in claiming that the taxes were
due on January 1, 1994, and on January 1, 1995. Calendar year
taxpayers are, under section 6072(a), required to file their
income tax returns and pay the taxes thereon on or before April
15th following the close of the taxable year. The Court,
therefore, rejects petitioner's claim that respondent is barred
by the period of limitations under section 6501(a).
2. Gain on Redemption of Stock
Under section 1001(a), gain from the sale or other
disposition of property is the excess of the amount realized over
the adjusted basis of the property. In this case, the parties
agree that petitioner realized $5,277 and $1,287 in 1993 and
1994, respectively, on the redemption of Citizen's Federal Stock
owned by petitioner. At issue is the adjusted basis of the
redeemed stock in the hands of petitioner.
Generally, under section 1012, the basis of property is its
cost. The cost is the amount paid for such property in cash or
other property. See sec. 1.1012-1(a), Income Tax Regs. Thus,
petitioner must demonstrate the economic outlay necessary for
- 6 -
shareholders to claim basis. See, e.g., Estate of Leavitt v.
Commissioner, 875 F.2d 420, 422 (4th Cir. 1989), affg. 90 T.C.
206 (1988); Underwood v. Commissioner, 535 F.2d 309, 311 (5th
Cir. 1976), affg. 63 T.C. 468 (1975). In the notice of
deficiency, respondent determined that petitioner had a zero
basis in the redeemed stock. Petitioner testified that he had a
basis of $25 per share or a total of $5,225 and $1,025 for the
shares redeemed in 1993 and 1994, respectively.
In an attempt to substantiate his basis in the redeemed
securities, petitioner submitted a copy of a certificate issued
by the Citizens Federal Bank. The certificate shows that
petitioner owned 163 shares of Citizens Federal Stock, that the
stock was 8 percent Series C Non-Cumulative Preferred Stock, and
that the stock's par value was $.01. Additionally, petitioner
submitted a copy of a letter from the Citizens Federal Bank
declaring its intent to redeem some of its outstanding shares
from shareholders. This letter indicates that the redemption
price of the stock was 101 percent of the preference value, or
$25.25 per share. Petitioner did not submit any other evidence
to support his claimed basis in the redeemed shares of stock.
Petitioner's testimony regarding the purchase of the stock
at issue was vague. In fact, he was unable to provide any
details regarding his purchase of the stock other than the
claimed $25 per share purchase price that he surmised from the
- 7 -
letter the bank sent him. The documents submitted by petitioner
in no way established the amount or amounts petitioner paid for
the shares or the amounts he originally deposited for such
shares. Petitioner contended that the stock was no more than a
savings account and that the redemption was nothing more than a
return of his money plus the 1 percent in excess of his original
deposit. However, he presented no evidence to show when such
moneys had been deposited or the amount that had been deposited.
Petitioner, therefore, failed to establish the economic outlay
necessary to claim basis. Thus, the Court finds that petitioner
had a zero basis in the 260 shares of Citizens Federal Stock that
were redeemed in 1993 and 1994. Accordingly, respondent's
determination is sustained.
3. Section 162 Trade or Business Activity
Petitioner claimed that he incurred deductible trade or
business expenses during 1993 and 1994 in connection with an
engineering business. He did not describe what type of
engineering activities he was engaged in or what kinds of
engineering services he performed, if any, during the years in
question. He admitted having no gross receipts for either year
from such an activity.
Section 162(a) provides: "There shall be allowed as a
deduction all the ordinary and necessary expenses paid or
- 8 -
incurred during the taxable year in carrying on any trade or
business". In order for an expenditure to be deductible as a
business expense, the expenditure must relate to an activity that
amounts to the present carrying on of an existing business.
Koons v. Commissioner, 35 T.C. 1092, 1100 (1961). Thus, in order
for petitioner to meet his burden of proof, it is necessary to
establish that the expenditures in question related to activities
that amounted to the present carrying on of a business.
Reisinger v. Commissioner, 71 T.C. 568, 572 (1979); Koons v.
Commissioner, supra. Whether a taxpayer is engaged in a trade or
business, and the nature of such trade or business, are questions
of fact. Ford v. Commissioner, 56 T.C. 1300, 1307 (1971), affd.
per curiam 487 F.2d 1025 (9th Cir. 1973); Corbett v.
Commissioner, 55 T.C. 884, 887 (1971); Canter v. United States,
173 Ct. Cl. 723, 354 F.2d 352 (1965). The Supreme Court has
interpreted the trade or business terminology of section 162 to
mean that the taxpayer must be involved in the activity with
continuity and regularity and that the taxpayer's primary purpose
for engaging in the activity must be for income or profit.
Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987). In
Commissioner v. Groetzinger, supra at 35, the Supreme Court
stated "that to be engaged in a trade or business, the taxpayer
must be involved in the activity with continuity and regularity
- 9 -
and that the taxpayer's primary purpose for engaging in the
activity must be for income or profit."
Petitioner did not establish that he was engaged in a trade
or business during 1993 and 1994. Petitioner earned no gross
receipts from the purported activity during the 2 years at issue
and presented no documentary information to establish exactly
what type of an activity he was purportedly engaged in. He
testified he was engaged in an engineering activity but presented
no evidence as to the nature of the engineering services he
provided, the nature of his clients, the date the activity
commenced, and why, during 1993 and 1994, he had no gross income
from such an activity. Petitioner testified he had an
engineering background and had taught engineering at two or three
colleges, and, although the Court has no reason to doubt such
testimony, the Court is not satisfied that petitioner's
background established a trade or business during 1993 and 1994.
On this record, the Court holds that petitioner failed to
establish that he was engaged in a trade or business activity
during 1993 and 1994.
4. Sec. 6651(a) Failure-to-File Addition to tax
The next issue is whether petitioner is liable for the
additions to tax under section 6651(a)(1) for his failure to file
Federal income tax returns for 1993 and 1994. Section 6651(a)(1)
imposes an addition to tax for a taxpayer's failure to file
- 10 -
timely returns, unless the taxpayer can establish that such
failure "is due to reasonable cause and not due to willful
neglect". The addition to tax is 5 percent of the amount
required to be shown on the return for each month beyond the
return's due date, not to exceed 25 percent. See sec.
6651(a)(1).
Reasonable cause exists where a taxpayer exercises ordinary
business care and prudence and still is unable to file a timely
return. See Crocker v. Commissioner, 92 T.C. 899, 913 (1989);
Estate of Vriniotis v. Commissioner, 79 T.C. 298, 310 (1982);
sec. 301.6651-1(c)(1), Proced. & Admin. Regs. Willful neglect is
viewed as a conscious, intentional failure or reckless
indifference to the obligation to file. See United States v.
Boyle, 469 U.S. 241, 245-246 (1985); Estate of Newton v.
Commissioner, T.C. Memo. 1990-208. Whether petitioner has shown
reasonable cause and no willful neglect is a question of fact to
be decided on the entire record. See Estate of Duttenhofer v.
Commissioner, 49 T.C. 200, 204 (1967), affd. per curiam 410 F.2d
302 (6th Cir. 1969).
Section 6011(a) provides that any person made liable for any
tax imposed by Title 26 shall make a return or statement
according to the forms and regulations prescribed by the
Secretary. Section 6012(a) requires that every individual having
gross income that equals or exceeds the exemption amount must
- 11 -
file a tax return, except (as relevant here) that a return shall
not be required of an individual who is not married, is not a
surviving spouse, is not a head-of-household, and for the taxable
year has gross income of less than the sum of the exemption
amount plus the basic standard deduction applicable to such
individual. Individual tax returns are due on or before the 15th
day of the fourth month following the close of the tax year. See
sec. 1.6072-1(a), Income Tax Regs.
The term "gross income" means "all income from whatever
source derived." Sec. 61. The exemption amounts applicable to
petitioner for the tax years 1993 and 1994 were $2,350 and
$2,450, respectively. See sec. 151(d). The standard deduction
amounts applicable to petitioner for tax years 1993 and 1994 were
$3,700 and $3,800, respectively. See sec. 63(c). Thus,
petitioner was required to file for 1993 and 1994 if his gross
income in those years exceeded $6,050 and $6,250, respectively.
Petitioner stipulated the fact that he had gross income in 1993
and 1994 of $28,440 and $14,896, respectively. Petitioner,
therefore, was required to file a return in the years at issue
since his gross income for those years clearly exceeded the
minimum statutory amounts for filing.
Petitioner claimed that he did not file returns for 1993 and
1994 because, based on his reading of the instructions
accompanying his tax return forms for the years in question, he
- 12 -
did not have enough income to be required by law to file a
return. Petitioner believed that in calculating his income to
determine whether he was required to file a return he was
entitled to deduct his claimed expenses in arriving at the income
figure. In support of this contention, petitioner submitted a
copy of the tax return instructions that he claimed he relied on
in reaching his decision not to file. The instructions read, in
relevant part, as follows:
You must file a return if your gross income was at least the
amount shown in the last column.[3] Gross income means all
income you received in the form of money, goods, and
services that is not exempt from tax, including any gain on
the sale of your home (even if you may exclude or postpone
part of all of the gain). * * *
Petitioner's claim is not supported by the instructions he
purportedly relied on. He misread or misconstrued the above-
quoted language. The instructions clearly state that a taxpayer
must file a return if his gross income for the year equals or
exceeds a specified dollar amount. In the next sentence, the
term "gross income" is clearly defined. Importantly, the
definition of "gross income" in the instructions does not in any
way state or even mention the deduction of any expenses in
arriving at "gross income". Petitioner's claim cannot be
3
The amount shown in the last column is $6,050 and $6250
for 1993 and 1994, respectively.
- 13 -
sustained. Nothing in the above-cited language supports the
netting of expenses against gross income to determine whether or
not income tax returns were required to be filed for the years in
question.
Petitioner was required to file income tax returns for 1993
and 1994. He has failed to show that the failure to file was due
to reasonable cause and was not due to willful neglect.
Petitioner, therefore, is liable for the failure-to-file addition
to tax under section 6651(a). Therefore, respondent's
determination on this issue is sustained.
5. Sec. 6654(a) Addition to tax for Failure to pay Estimated tax
Respondent determined the addition to tax under section
6654(a) for failure to make estimated tax payments for 1993.
Section 6654(a) provides for an addition to tax "in the case of
any underpayment of estimated tax by an individual". There is no
exception contained therein relating to reasonable cause and lack
of willful neglect. Subject to certain exceptions provided by
statute and not pertinent here, this addition to tax is otherwise
automatic if the amounts of the withholdings and estimated tax
payments do not equal statutorily designated amounts. See
Niedringhaus v. Commissioner, 99 T.C. 202, 222 (1992).
Petitioner produced no evidence to show that respondent's
determination of his liability for the addition to tax under
- 14 -
section 6654(a) was in error. Consequently, because petitioner
failed to make any estimated tax payments for 1993, respondent's
determination on this issue is sustained.
To reflect the foregoing,
Decisions will be entered
for respondent.4
4
The total amount of stipulated income attributed to
petitioner for 1993 exceeded the amount determined in the notice
of deficiency by $4,027. Respondent did not file responsive
pleadings to increase the deficiency against petitioner for this
additional income. Accordingly, the deficiencies and additions
to tax for 1993 will be the amounts determined in the notice of
deficiency.
| {
"pile_set_name": "FreeLaw"
} |
11th
Court of Appeals
Eastland,
Texas
Opinion
Sabre Oil & Gas Corporation
Appellant
Vs. No. 11-00-00078-CV C
Appeal from Erath County
Hershel Gibson and wife, Mary Margaret Gibson
Appellees
Hershel and Mary Margaret Gibson brought suit
against Sabre Oil & Gas Corporation seeking a determination that an oil and
gas lease claimed by Sabre had terminated and that a gas unit formed by Sabre
was void. The trial court found that
the gas unit was formed in violation of the provisions of the oil and gas lease
and void ab initio. Sabre appeals. We reverse and remand.
In 1957, the Gibsons=
predecessors in interest, together with others as lessors, executed an oil,
gas, and mineral lease to Sabre=s
predecessor as lessee. The lease
covered 38 separate tracts of land. The
Gibsons own all of the minerals in three tracts under the lease, and Sabre
acquired rights to those tracts subject to a depth limitation. Sabre drilled and completed a gas well on one
of the three tracts of land in April 1997.
On July 29, 1997, Sabre filed a Designation of Unit, known as the Gibson
#1 Gas Unit. This unit pooled the
Gibson=s three tracts
of land, containing 155.33 acres, with other land, containing 239.12 acres which were not a part of the
1957 lease.
The Gibsons filed suit against Sabre, Tandem
Energy Corporation, and Rainbow Energy Corporation seeking a declaration that
the 1957 lease had terminated as to the Gibsons=
lands and that the Gibson #1 Unit was void because it was formed in violation
of the 1957 lease. On October 28, 1999,
the trial court granted the motion for partial summary judgment of Sabre,
Tandem Energy, and Rainbow Energy, denying the Gibson=s claim that the 1957 lease had terminated.[1] On January 6, 2000, the trial court entered
another order granting the Gibsons=
motion for partial summary judgment and found that the Gibson #1 Unit was
formed in Aviolation
of the provisions of the oil and gas lease and void ab initio.@ The trial court entered a final judgment on March 3, 2000,
awarding the Gibsons damages, attorney=s
fees, and prejudgment and post-judgment interest.
We will first address Sabre=s issues on appeal addressing the trial court=s jurisdiction to enter the
judgments of January 6, 2000, and March 3, 2000, and addressing the trial court=s denial of Sabre=s plea in abatement.
In its second issue on appeal, Sabre contends that
the trial court was without jurisdiction to enter its order on the Gibsons= motion for partial summary
judgment on January 6, 2000, and that the trial court was without jurisdiction
to enter the final judgment on March 3, 2000.
Sabre urges that the trial court=s
previous order granting summary judgment issued on October 28, 1999, was
a final, appealable order that disposed of all parties and issues.
The October 28 order states that the Gibsons= second motion for partial
summary judgment is denied, that the second motion for partial summary judgment
of Tandem Energy and Rainbow Energy is granted, and that the third motion for
partial summary judgment of Sabre is granted.
The order also states that the Gibsons Atake
nothing by their suit against SABRE OIL & GAS CORPORATION for oil and gas
lease termination.@ The order contains a AMother Hubbard@
clause providing that AALL
RELIEF NOT EXPRESSLY GRANTED HEREIN IS EXPRESSLY DENIED.@
Sabre argues that, because this order contained a
Mother Hubbard clause, it disposed of all parties and issues and became final
30 days after October 28, 1999.
Consequently, Sabre urges that the trial court was without jurisdiction
to enter the summary judgment of January 6, 2000, in which the court held that
Sabre=s lease was void
ab initio. We disagree.
The inclusion of a Mother Hubbard clause does not
indicate that a judgment rendered without a conventional trial is final for
purposes of appeal. Lehmann v. Har‑Con
Corporation, 39 S.W.3d 191 (Tex.2001).
When there has not been a conventional trial on the merits, an order or
judgment is not final for purposes of appeal unless it actually disposes of
every pending claim and party or unless it clearly and unequivocally states
that it finally disposes of all claims and all parties. Lehmann v. Har‑Con Corporation,
supra. The trial court stated in its
October 28 order that it was addressing the parties= motions for partial summary judgment. The order states that the Gibsons take
nothing on their claim against Sabre for oil and gas lease termination;
however, the order does not reference the Gibsons=
other claims against Sabre. We find
that the October 28 order does not clearly and unequivocally state that it
disposes of all claims and parties.
Sabre=s second
issue on appeal is overruled.
In its third issue, Sabre complains that the trial
court erred in denying its plea in abatement.
Sabre included in its second amended original answer a plea in abatement
which requested the trial court to join the 60 other royalty owners of the 239.12 acres pooled with the Gibsons= land to form the Gibson #1
Unit. Appellant cites Veal v. Thompson, 159 S.W.2d 472 (Tex.1942), as authority for its argument that all
royalty owners are necessary parties pursuant to TEX.R.CIV.P. 39. However, Veal was decided prior to
the 1971 amendment to Rule 39.
The current Rule 39(a) provides that:
A person...shall be joined as a party in the
action if (1) in his absence complete relief cannot be accorded among those
already parties, or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action in his absence may
(i) as a practical matter impair or impede his ability to protect that interest
or (ii) leave any of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations by reason
of his claimed interest.
Rule 39(a) no longer speaks of "necessary" and
"indispensable" parties, and Texas courts have begun to discard these
terms. Texas Oil & Gas Corporation
v. Ostrom, 638 S.W.2d 231(Tex.App. ‑ Tyler 1982, writ ref=d n.r.e.); Carper v.
Halamicek, 610 S.W.2d 556, 557 (Tex.Civ.App. ‑ Tyler 1980, writ ref'd
n.r.e.). Moreover, Rule 39 focuses not
so much upon whether the court has jurisdiction, but upon whether the court
ought to proceed with the parties before it.
Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204
(Tex.1974). Under Rule 39, any change
should be to lessen the number of "indispensable" parties. 1 McDONALD, TEXAS CIVIL PRACTICE ' 5.37 (1992). The question of joinder is within the
discretion of the trial court. Pampell
Interests, Inc. v. Wolle, 797 S.W.2d 392 (Tex.App. ‑ Austin 1990, no
writ).
The Gibsons brought suit against Sabre seeking a
determination that the oil and gas lease claimed by Sabre had terminated and
that the Gibson #1 Unit was void. The trial court was able to provide the
requested relief without joining the other royalty owners. Although they had an interest in that their
share of the production from the pooled unit would be affected, presence of the
other royalty owners was not necessary to determine whether Sabre pooled in bad
faith and breached the terms of the lease.
We find that the trial court did not err in
denying Sabre=s plea
in abatement. Sabre=s third issue on appeal is
overruled.
Having addressed its challenge to jurisdiction and
to denial of its plea in abatement, we now address Sabre=s first issue on appeal. In its first issue, Sabre argues that the
trial court erred in narrowly construing the pooling provision of the 1957
lease. Paragraph No. 4 of the 1957
lease provides:
Lessee, at his option, is hereby given the right
and power to pool or combine the acreage covered by this lease or any portion
thereof, with other land, lease or leases in the immediate vicinity thereof, to
comprise what is hereinafter called a Aunit@, when in Lessee=s judgment it is necessary
or advisable to do so in order properly to develop and operate said premises
for the production of oil, gas or gaseous substances, including condensate.
The 1957 lease also contains Paragraph No. 4a which states:
Notwithstanding any language in Paragraph A4@ above, to the contrary, it is expressly
agreed and understood by and between the parties hereto that before Lessee
hereunder shall be allowed to pool or unitize any of the lands embraced by this
lease with other lands not owned by the Lessor herein Lessee shall designate
full units from the lands embraced by this lease first and in the event there
is land in excess of a full unit remaining then same may be done in accordance
with Paragraph A4@ above.
The Gibsons contend that, under Paragraph No. 4a,
Sabre could not pool other lands not owned by the lessor until all of the lands
embraced by the 1957 lease had been included in full units. Hershel Gibson stated in his affidavit that
not all lands in the 1957 lease were included in units at the time Sabre
designated the Gibson #1 Unit.
In the absence of clear language to the contrary,
pooling clauses should not be construed in a narrow or limited sense. Elliott v. Davis, 553 S.W.2d 223
(Tex.Civ.App. ‑ Amarillo 1977, writ ref=d
n.r.e.); Texaco, Inc. v. Lettermann, 343 S.W.2d 726, 732 (Tex.Civ.App. -
Amarillo 1961, writ ref'd n. r. e.).
An oil and gas lease is a contract and must be interpreted as one. Browning Oil Company, Inc. v. Luecke, 38
S.W.3d 625 (Tex.App. ‑ Austin 2000, pet=n
den=d); Hitzelberger
v. Samedan Oil Corporation, 948 S.W.2d 497, 503 (Tex.App. - Waco 1997, pet=n den=d). In construing an unambiguous oil and gas
lease, our task is to ascertain the parties' intentions as expressed in the
lease. Heritage Resources, Inc. v.
NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Sun Oil Company (Delaware) v.
Madeley, 626 S.W.2d 726, 727‑28 (Tex.1981); Browning Oil Company, Inc. v. Luecke, supra. We must examine the
entire document and consider each part with every other part so that the effect
and meaning of one part on any other part may be determined. Heritage Resources, Inc. v. NationsBank,
supra; Steeger v. Beard Drilling, Inc.,
371 S.W.2d 684, 688 (Tex.1963). We
presume that the parties to a contract intend every clause to have some effect.
Heritage Resources, Inc. v. NationsBank, supra; Ogden v. Dickinson State Bank,
662 S.W.2d 330, 331 (Tex.1983). We give
terms their plain, ordinary, and generally accepted meaning unless the
instrument shows that the parties used them in a technical or different
sense. Heritage Resources, Inc. v.
NationsBank, supra.
After
examining the entire 1957 lease, an unambiguous instrument, and after
harmonizing all provisions, we find that the Gibson #1 Unit was not formed in
violation of the provisions of the lease.[2] Paragraph No. 8 of the lease provides:
The rights of either party hereunder may be
assigned in whole or in part and the provisions hereof shall extend to the
heirs, successors and assigns.
In order to give effect to Paragraph No. 8, a lessee who acquired
only a portion of the lands covered by the 1957 lease would satisfy the
requirements of Paragraph No. 4a if the lessee included all of the tracts under
the lease to which he has been assigned.
It is insightful to substitute the names of the
successors in interest and insert the language of Paragraph No. 8 in place of
the original parties to the lease and the lands covered by the lease. Such a reading would provide in Paragraph
No. 4a that:
[B]efore
[Sabre] hereunder shall be allowed to pool or unitize any of the lands embraced
by [the assignment of] this lease with other lands not owned by the [Gibsons]
herein [Sabre] shall designate full units from the lands embraced by [the
assignment of] this lease first and in
the event there is land in excess of a full unit remaining then same may be
done in accordance with Paragraph A4@ above.
The record shows that Sabre included all of
the tracts owned by the Gibsons as part of the 1957 lease in its Gibson #1 Unit
and that these three tracts were the only land under the 1957 lease to which
Sabre had acquired rights. The 1957
lease indicates an intent to authorize pooling under Paragraph No. 4. The only limitation is that the lessee first
attempt to include all land under the 1957 lease.
If it could not acquire the
consent or interest from the leasehold owners under other lands covered by the
1957 lease, Sabre could not pool at all.
The pooling provision under Paragraph No. 4 would have no effect. We must presume the parties intended for
every clause to have some effect. The
1957 lease gives the lessee the right to pool if he first uses every effort not
to diminish the lessor=s
interest. The Gibsons= interest was not
diminished by routine pooling in that all of the land they own was included in
the unit. Examining the entire document
and harmonizing all parts of the lease, we find that the trial court erred in
construing the pooling clause. Sabre=s first issue on
appeal is sustained.
Because of our disposition
of Sabre=s first three
issues on appeal, we need not address Sabre=s
remaining issues. TEX.R.APP.P. 47.1.
The Gibson=s bring two cross-points in
which they argue that the trial court erred in denying their claim that the
1957 lease had terminated. On October
28, 1999, the trial court entered an order denying the Gibson=s motion for partial
summary judgment and granting the motions for partial summary judgment of
Tandem Energy, Rainbow Energy, and Sabre.
Tandem and Rainbow were then severed from the cause and a final judgment
was entered that the Gibsons take nothing by their suit against Tandem and
Rainbow.
Sabre contends that the Gibsons= cross-points on the issue
of lease termination are barred by res judicata and/or want of
jurisdiction. Sabre argues that,
because the trial court entered a final judgment against the Gibsons on the
issue of lease termination and because the Gibsons did not perfect an appeal
from that judgment, they are barred from now challenging the trial court=s ruling on the issue of
lease termination. However, the res
judicata effects of an action cannot preclude litigation of claims that a trial
court explicitly separates or severs from that action. Van Dyke v. Boswell, O=Toole, Davis &
Pickering, 697 S.W.2d 381 (Tex.1985).
We will address both of the Gibsons=
cross-points.
The Gibsons first contend that the trial court
erred in ruling that the 1957 lease did not terminate under the habendum
clause.[3] The habendum clause of the 1957 lease states
in Paragraph No. 2 that:
Subject to the other provisions herein contained,
this lease shall be for a term of 5 years from this date (called Aprimary term@), and as long thereafter
as oil, gas or other mineral is produced from said land or unitized area
hereunder, and as long as operations are prosecuted under the terms
hereof.
The Gibsons argue that the 1957 lease is divisible as to each of
the separate tracts and that production was required on the three tracts of
land they own in order to hold the lease.
The general rule is that production on one tract will operate to
perpetuate the lease as to all tracts described therein and covered
thereby. Mathews v. Sun Oil Company,
425 S.W.2d 330 (Tex.1968); Sun Operating Limited Partnership v. Holt, 984
S.W.2d 277 (Tex.App. ‑ Amarillo 1998, pet=n
den=d). The Gibsons contend that other provisions of
the 1957 lease, specifically Paragraph No. 3, a typical royalty clause; No. 4A,
the atypical pooling clause addendum; and No. 5A, the atypical minimum royalty
provision, when read together with the habendum clause indicate that the 1957
lease is not to be read as a single lease but, rather, as separate leases for
each tract of land.
The Gibsons bring a litany of cases for the
proposition that, while the habendum clause is usually treated as indivisible,
it is recognized that the lease may contain clauses for divisibility in which
production will extend the life of the lease only as to that portion of the
subdivided leasehold on which production is obtained. As examples, the Gibsons cite Riley v. Meriwether, 780 S.W.2d 919
(Tex.App. ‑ El Paso 1989, writ den=d); SMK Energy Corporation v. Westchester Gas
Company, 705 S.W.2d 174 (Tex.App. ‑ Texarkana 1985, writ ref=d n.r.e.); Gibson Drilling
Co. v. B & N Petroleum Inc., 703 S.W.2d 822 (Tex.App. ‑ Tyler 1986,
writ ref=d n.r.e.);
and Fisher v. Walker, 683 S.W.2d 885 (Tex.App. ‑ El Paso 1985, writ ref=d n.r.e. ). Each of these cases is distinguishable. In each case, the lease examined by the
court contained additional language modifying the habendum clause and providing
for termination as to lands not in a producing unit.
We find, in reading the entire 1957 lease, that
production was not required on each tract of land in order to extend the
lease. The summary judgment evidence
shows that there was production on the land included in the 1957 lease. The Gibsons=
first cross-point is overruled.
In their second cross-point, the Gibsons complain
that the trial court erred in ruling that the 1957 lease did not terminate
under the rental clause. Paragraph No.
5 of the 1957 lease provides that, if operations for drilling are not commenced
on or before a year from the date of the lease, the lease shall terminate:
[U]nless...Lessee
shall pay or tender to Lessor...the sum of One Dollar per acre for all mineral
acres owned by Lessors...which shall cover the privilege of deferring
commencement of drilling operations for a period of twelve (12) months.
Paragraph No. 5a of the 1957 lease provides:
Lessee guarantees that the royalties and/or
rentals payable under this lease shall equal or exceed a sum of money equal to
One Dollar ($1.00) per acre for each acre of land covered by this lease for
each twelve month period during which this lease remains in force and,
notwithstanding any other provision
contained in this lease, the Lessee binds himself, his heirs,
successors and assigns, to pay a minimum rental each year while this
lease remains in force equal to One Dollar ($1.00) per acre for each acre of
land covered by this lease, and in the event the royalties payable by
Lessee, his heirs, successors and assigns, shall amount to less than One Dollar
($1.00) per acre for each acre of land covered by this lease during each twelve
month period while this lease is in force, then and in such event, the
difference between the amount paid and One Dollar ($1.00) per acre for each
acre of land covered by this lease for said period of time shall be paid by the
Lessee, his heirs, successors and assigns, to Lessor, and in the event of
failure to make any such payment (which payment shall be due not later than
thirty (30) days after the expiration of any twelve month period during which this
lease is in force) when such payment is due shall terminate this lease as to
both parties. (Emphasis added)
The Gibsons urge two theories under this
cross-point. First, the Gibsons urge
that the emphasized language in Paragraph No. 5a obligates Sabre to pay one
dollar per acre in rental payments on all tracts where there is no production.
Second, the Gibsons urge that the wording AOne
Dollar ($1.00) per acre for each acre@
should be understood to mean that each mineral owner under the 1957 lease
should receive a minimum of one dollar for each acre they own whether the
production is from their lands or not.
We disagree.
Paragraph No. 5a is atypical. However, we must read the entire lease and
harmonize Paragraph No. 2, the habendum clause; Paragraph No. 3, the royalties
clause; Paragraphs Nos. 4 and 4A, the
pooling provisions, with Paragraph No. 5, the delay rental provisions, and
Paragraph No. 5A, the atypical minimum royalty clause. After the expiration of the primary term,
the payment of rentals will not keep a lease in effect. Tennant v. Matthews, 19 S.W.2d 1115
(Tex.Civ.App. - Eastland 1929, writ ref=d). We find that, under the terms of the 1957
lease, the lessee was obligated to make a minimum royalty payment of one dollar
per acre. Paragraph No. 5a does not
require a rental payment in addition to the royalty payment.
On September 2, 1960, all of the lessors under the
1957 lease executed a stipulation providing that:
[R]oyalties
on any oil, gas and minerals produced from any of the tracts of land covered by
said lease shall be paid to the record owner of such tract, that is, the tract
from which the production is taken, unless such tract has been pooled with any
other tract in forming a unit, in which event the royalties shall be paid to
the owners of land within the unit in proportion to their interests.
The Gibsons offer this stipulation as evidence that the lease
should be treated as separate leases.
This argument fails for several reasons. First, we are interpreting the 1957 lease and should not consider
extraneous evidence. The courts will
enforce an unambiguous instrument as written; and, in the ordinary case, the
writing alone will be deemed to express the intention of the parties. Sun Oil Company (Delaware) v. Madeley, supra.
Next, the stipulation is binding on the lessors and their successors in
interest but is not binding on the lessees and their successors in interest who
did not execute the agreement. Finally,
the 1957 lease is what is defined as a community lease by the fact that 38
tracts of land under different ownership were included in the same lease. Parker v. Parker, 144 S.W.2d 303
(Tex.Civ.App. - Galveston 1940, writ ref=d);
French v. George, 159 S.W.2d 566 (Tex.Civ.App. - Amarillo 1942, writ ref=d). The stipulation is merely an agreement among
the lessors to counteract the effects of a community lease and to provide for
the division of proceeds. It does not
make the 1957 lease a separate lease for each of the 38 tracts. Moreover, the summary judgment evidence
shows that the Gibsons received royalty payments under the terms of the 1957
lease. The Gibsons= second cross-point is
overruled.
We reverse the trial court=s judgment finding that the Gibson #1 Unit was
formed in violation of the provisions of the lease and void ab initio and
remand for further proceedings by the trial court.
W. G. ARNOT, III
CHIEF JUSTICE
March 28, 2002
Publish. See TEX.R.APP.P.
47.3(b).
Panel
consists of: Arnot, C.J., and
Wright,
J., and McCall, J.
[1]Pursuant to the trial court granting the motions for
summary judgment of Tandem and Rainbow, they were dismissed from the suit and
are not parties to this appeal.
[2]We note that the 1957 lease contains several atypical
provisions, including Paragraph No. 4A.
[3]Contrary to their position that regardless of ownership
the lease should be treated as indivisible for pooling purposes, the Gibsons
now urge in both cross-points that the lease should be treated as divisible for
perpetuation by production. A party may also state as many separate claims or
defenses as he has, regardless of consistency and whether based upon legal or
equitable grounds or both. TEX.R.CIV.P. 48.
| {
"pile_set_name": "FreeLaw"
} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINODH PARSAD MAHARAJ; SUNITA No. 03-71066
DEVI MAHARAJ; PREETIKA MAHARAJ;
MEENAL MAHARAJ; VINEET Agency Nos.
MAHARAJ, A71-788-923
Petitioners,
A71-788-924
A72-402-323
v.
A72-402-324
ALBERTO R. GONZALES, Attorney A72-402-325
General,
Respondent.
VINODH PARSAD MAHARAJ; SUNITA No. 03-73995
DEVI MAHARAJ; PREETIKA MAHARAJ;
MEENAL MAHARAJ; VINEET Agency Nos.
MAHARAJ, A71-788-923
Petitioners,
A71-788-924
A72-402-323
v.
A72-402-324
ALBERTO R. GONZALES, Attorney A72-402-325
General,
ORDER
Respondent.
Filed February 6, 2006
Before: Mary M. Schroeder, Chief Judge.
ORDER
Upon the vote of a majority of nonrecused regular active
judges of this court, it is ordered that this case be reheard by
1585
1586 MAHARAJ v. GONZALES
the en banc court pursuant to Circuit Rule 35-3. The three-
judge panel opinion shall not be cited as precedent by or to
this court or any district court of the Ninth Circuit, except to
the extent adopted by the en banc court.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West.
| {
"pile_set_name": "FreeLaw"
} |
296 F.3d 431
Sally DOE, as Next Friend of Jane Doe, a minor, Plaintiff-Appellee,v.CITY OF ROSEVILLE, Roseville Community Schools; John Kment; Frank Mayer; Betty Slinde; Leroy Herron; Dorothea Sue Silavs, in their individual and official capacities, jointly and severally, Defendants-Appellants.
No. 01-1385.
United States Court of Appeals, Sixth Circuit.
Argued: December 6, 2001.
Decided and Filed: July 16, 2002.
Rehearing and Suggestion for Rehearing En Banc Denied: September 19, 2002.
COPYRIGHT MATERIAL OMITTED Thomas W. Stephens (argued and briefed), Goodman, Lister, Seikaly & Peters, Detroit, MI, Julie H. Hurwitz (briefed), Detroit, MI, for Plaintiff-Appellee.
Daniel J. Kelly (argued and briefed), Cox, Hodgman & Giarmarco, Troy, MI, for Defendants-Appellants.
Before SILER and BATCHELDER, Circuit Judges; HOOD, District Judge.*
OPINION
BATCHELDER, Circuit Judge.
1
Defendants Betty Slinde, Frank Mayer, Leroy Herron, John Kment and Dorothea Sue Silavs, appeal the district court's order denying them summary judgment on qualified immunity grounds on the claims against them in their individual capacities under 42 U.S.C. § 1983. Those claims allege that these individual defendants deprived Jane Doe, a minor, of her constitutional right to be free from sexual abuse at the hands of a public school teacher. Because we conclude that, as to these individual defendants, Jane has not alleged the violation of an actual constitutional right, we will reverse the district court's judgment.
PROCEDURAL HISTORY
2
In 1999, the plaintiff, Sally Doe ("Sally"), as Next Friend of Jane Doe ("Jane"), a minor, filed this action on behalf of Jane against the Roseville Community Schools and a number of individuals in both their official and individual capacities, raising claims under 42 U.S.C. § 1983, Title IX, 20 U.S.C. § 1681(a), and various state laws for the alleged sexual abuse of Jane during 1992 and 1993. The defendants include Betty Slinde, who retired in 1986 from her position as principal of Fountain Elementary School in the Roseville School District; Frank Mayer, who retired from his position as Superintendent of the Roseville Schools sometime after 1988 and before 1992; Leroy Herron, former Assistant Superintendent of Roseville Community Schools who retired after 1988 but before 1992; Dorothea Sue Silavs, Roseville's Director of Special Education at the time of the alleged sexual abuse; John Kment, Superintendent of Roseville Community Schools during the alleged abuse; and John Lomnicki, Jane Doe's Chapter I reading teacher.
3
As we understand the complaint, Jane claims that defendant Lomnicki had a history of sexually molesting his students, and that school officials both failed to take action against Lomnicki and attempted to cover-up his history; that Lomnicki sexually molested Jane during 1992 and 1993; and that the defendants' actions and failures to act violated Jane's constitutional and statutory rights.
4
After extensive discovery had been conducted, the defendants — other than Lomnicki — moved for summary judgment on the § 1983 and Title IX claims.1 The district court heard oral argument and denied the motion. Before us on appeal is the district court's denial of summary judgment on qualified immunity grounds to defendants Slinde, Mayer, Herron, Silavs and Kment.
STATEMENT OF FACTS
5
Lomnicki was hired as a Fountain Elementary School teacher by Roseville Community Schools in 1960. Although there is evidence that Lomnicki repeatedly molested a young male student in the mid-sixties, the Appellee does not claim that the school district was ever made aware of this conduct. The misconduct material to this appeal began in the mid-seventies.
6
Beginning with the 1975-76 school year, several fourth- and fifth-grade girls complained that Lomnicki had touched their legs when they were wearing dresses and put his hand down the back of their pants and up their dresses. According to one of the girls, when her father discussed the situation with then-principal Slinde, Slinde told him that "she did not see how it could be possible." Slinde testified that she spoke with Lomnicki and warned him to be very careful not to touch any children inappropriately, but she did not follow up with that particular parent, she did not document the incident or report it to anyone, and on her retirement, she destroyed all of her files, including any contemporaneous notes she might have made regarding this incident.
7
The following year, several fourth-grade girls alleged that Lomnicki had put his hands up their shirts and dresses, touched their buttocks, rubbed their backs, and made them sit on his lap during school in front of other children. One of these girls testified that Slinde had questioned each of them and told them that "she didn't want to hear anymore talk about it [Lomnicki's touching] and that [they] weren't to talk about it to anyone, not to tell [their] parents and if [they] continued to talk about it, then Mr. Lomnicki would get in a lot of trouble, go to jail and die there."
8
Other incidents involved two fifth-grade girls, one of whom was in a classroom alone when Lomnicki came in behind her, put pieces of candy in her mouth and in each of her hands and then pulled her shirt tight and made comments about how her breasts had grown. The second girl alleged that Lomnicki had on several occasions grabbed the inside part of her leg, stuck his hand down her top all the way to her pants and rubbed her vaginal area, and picked her up by the waist, spit the gum he had been chewing into her mouth, and stuck his tongue into her mouth to obtain her gum. It does not appear from the statements and testimony of these two girls that they reported these incidents to anyone. It is undisputed, however, that Slinde did not relay the complaints that were reported to her to anyone in the administration of the school district, nor did she discipline Lomnicki in any way.
9
Sometime after these incidents, Lomnicki was transferred to Kaiser Elementary School, but the school was not notified of the verbal warning given to him by Slinde. In 1979, Superintendent Mayer was advised that Lomnicki had fondled the breasts of four sixth-grade girls. Mayer investigated the matter and concluded that Lomnicki exercised "poor judgment." Mayer placed a written reprimand — in a sealed envelope — in Lomnicki's personnel file admonishing him and reminding him that "you are not to straighten clothing or pick up jewelry from beneath a sweater or blouse or to touch students in a way which could be misinterpreted by them or their parents." Lomnicki was warned that "[f]uture instances of poor judgment on your part may result in more severe disciplinary action up to and including discharge."
10
Following this incident, Lomnicki was transferred to Arbor Elementary School, where he was assigned to a federally funded remedial reading program ("Chapter I"), in which he taught individual students, one at a time, in a private classroom. The officials at this school were not told of either the warning by Slinde or the written reprimand from Mayer. There were no reported incidents at Arbor Elementary School until nine years later when, in 1988, several sixth-grade girls reported to the school's principal that Lomnicki had been hugging them in front of other students, giving them back rubs, placing his hands in their pockets, and forcibly holding their hands between his. The principal reported the allegations to Assistant Superintendent Leroy Herron and Superintendent Mayer. Herron investigated the matter and placed a written reprimand — again in a sealed envelope — in Lomnicki's file, classifying the incident as "poor judgment" and warning Lomnicki that he was not to hug or put his hands on students in a manner that may be misconstrued by the students or their parents. Because some of the girls were giggling when Herron confronted them and did not give concrete answers to his questions, and because Lomnicki had plausible explanations for all of his conduct, Herron did not think that there was enough evidence for this incident to be considered child abuse. He did acknowledge that this was Lomnicki's second warning and recommended that in the future, Lomnicki "should not attempt to straighten out sweaters or blouses of [his] students."
11
Superintendent Mayer sent a confidential memo to the school board members and the school district's attorney informing them of Lomnicki's reprimand and the 1979 incident. He advised that Herron had met with Lomnicki, and that Mayer would notify the Macomb County Child Abuse Office, place a reprimand in Lomnicki's file, and immediately transfer Lomnicki. Lomnicki was indeed transferred — to Eastland Elementary School — but again, school officials were not informed of Lomnicki's history. Again, Lomnicki was assigned to the Chapter I program.
12
Jane, born in 1987, encountered Lomnicki when she entered kindergarten at Eastland in 1992, and began receiving individualized reading instruction from him. Jane claims that on at least five separate occasions, Lomnicki sexually abused her. According to Jane, Lomnicki had a mask, a rope and a small wooden bat on each of those occasions. The abuse included Lomnicki's removing her clothing; touching her private parts with his hands and penetrating her vagina with his fingers; taking her into the boys' bathroom and, while wearing the mask, tying her wrists with rope, gagging her, hanging her from a hook on the door and hitting her with a small wooden bat; and — this time in the library — while again wearing a mask, putting his finger in her vagina and slapping her in the face. Jane claims that none of this abuse left any marks or bruises on her body, and that she did not tell anyone about these incidents because Lomnicki threatened to kill her if she did. Jane was unable to provide even approximate dates for any of the alleged incidents of abuse, and specifically, there is no evidence from any source that Lomnicki abused Jane during the period from January 1993, when school officials first learned that Lomnicki was under criminal investigation, until March 1993, when he was removed from the classroom (as we more fully explain below).
13
In late 1992 and early 1993, April Stamevski, one of the girls Lomnicki had allegedly abused in the mid-seventies, learned that Lomnicki was teaching at Eastland Elementary School, the elementary school for the area in which Stamevski lived. Outraged, she went door-to-door to the families with children who lived on her street to warn them about Lomnicki. One of the parents whom she told about Lomnicki's abuse of her was Sally, Jane's mother. Although Stamevski did not mention the abuse in front of Jane, Sally questioned Jane about whether anyone other than Sally or Jane's sister had ever touched her in her private areas. Jane denied that anyone had.
14
In light of Stamevski's warning, Sally went to the school and questioned Principal Susan Enke about it. Enke apparently said that nothing of that sort happened in her school and that she would not remove Jane from Lomnicki's supervision. However, in that meeting, Enke alluded obliquely to a current criminal investigation of Lomnicki. This investigation was into charges that from 1982 until 1984, Lomnicki had molested his neighbor, Sarah Williams, who was then in the fourth and fifth grades. Apparently, Lomnicki had tutored Williams in math in her bedroom with the door closed, and during those closed-door sessions, he engaged in conduct ranging from kissing her to performing oral sex on her. Although Williams's mother had on one occasion found Williams on Lomnicki's lap, when Williams told her mother — after approximately one year of Lomnicki's "tutoring" — about the abuse, the mother did not believe her and did nothing about her report of abuse. It was not until 1992 that Williams went to the police about Lomnicki. As a result of the ensuing investigation, Lomnicki was convicted of criminal sexual conduct and sentenced to 18 to 36 years' imprisonment.
15
Sally's meeting with Enke apparently occurred around the same time that school officials were first becoming aware of Sarah Williams's complaint. While the exact date is not clear from the record before us, it appears that Superintendent Kment learned that the police were investigating Lomnicki when the police requested Lomnicki's personnel file in January or February of 1993. Because Lomnicki was a tenured teacher, the school district's attorney, Ronald Greve, expressed reservations about whether the district had authority to suspend Lomnicki on the basis of the police report in the Williams matter. In early March of 1993, however, Lomnicki was removed from direct contact with students and given administrative duties in the school district's central office. The investigation into Williams's charges of sexual abuse became public in mid-March 1993.
16
Despite the publicity in 1993, Jane did not tell anyone about Lomnicki's actions until November 1994, when Sally again questioned Jane about whether someone had touched her. Jane initially denied it, but eventually, apparently in a highly agitated state and clutching a book that Lomnicki had given her, she told her mother that "the man that gave me this book is the man that hurt me."2
17
Sally reported Jane's allegations to school officials in December 1994. Director of Special Education Dorothea Sue Silavs filed a report with the Michigan Department of Social Services in which she stated that the alleged perpetrator of abuse was unknown but might possibly be in the household. The report noted further that
18
[s]tudent has recently alleged that a reading teacher abused her two years ago, but circumstances are unlikely and child is inconsistent. Investigation reveals child was evaluated and certified emotionally impaired and evaluation revealed reports of "Chuck Norris hurts me when he touches my private parts." Concern that child being abused but by whom? Someone at home?
19
Because of the Williams case and Jane's complaint, Dr. Emmanuel Tanay performed a psychological evaluation on Lomnicki in March 1995, at which time Lomnicki retired from the school district. The following month, Lomnicki was convicted of first and second degree criminal sexual conduct in the Sarah Williams case.
ANALYSIS
A. Jurisdiction
20
As a threshold matter, we must determine whether we have jurisdiction over this appeal. In Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), the Supreme Court held that the district court's denial of summary judgment because the facts material to the defense of qualified immunity were in dispute was not subject to interlocutory review. 515 U.S. at 313, 115 S.Ct. 2151. However, the Supreme Court acknowledged in Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), that Johnson could not be read to mean that every denial of summary judgment is non-appealable. 516 U.S. at 313, 116 S.Ct. 834. Rather, "Johnson reaffirmed that summary judgment determinations are appealable when they resolve a dispute concerning an `abstract issu[e] of law' relating to qualified immunity." Id. (quoting Johnson v. Jones, 515 U.S. at 317, 115 S.Ct. 2151). Moreover, in Johnson, the Court determined that when a denial of summary judgment based on qualified immunity involves a legal question, a court of appeals may "take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason." Johnson, 515 U.S. at 319, 115 S.Ct. 2151. But if the district court does not identify those facts, the appellate court must "undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the non-moving party, likely assumed." Id. Interpreting Johnson, this circuit has held that "[t]he question whether the uncontested facts demonstrated a constitutional violation is a pure question of law — and one from which an immediate appeal can be taken where qualified immunity has been denied." Turner v. Scott, 119 F.3d 425, 428 (6th Cir.1997). Further, we have said that "[t]he district court's assertion that there were genuine issues of material fact does not, standing alone, destroy the appealability of a qualified immunity ruling." Id.
21
In the case before us, the district court did not identify the facts that it assumed when it denied summary judgment to each of the five defendants claiming qualified immunity. Rather, it denied summary judgment because there were "underlying factual disputes as to the qualified immunity." Accordingly, we may review de novo the district court's decision to determine whether, viewing the facts as the plaintiff portrays them, the defendants are entitled to qualified immunity as a matter of law.
B. Qualified Immunity
22
This is an interlocutory appeal of the denial of qualified immunity to each of the defendant school officials. Because qualified immunity is immunity from suit as well as from liability, we begin our review by determining "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, ... whether that right was clearly established at the time of the alleged violation." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Here, the plaintiff's complaint claims that Jane was deprived of her right "not to have her bodily integrity violated by physical sexual abuse by a school employee."
23
This circuit held in Doe v. Claiborne County, Tenn., 103 F.3d 495 (6th Cir.1996), that "a schoolchild's right to personal security and to bodily integrity manifestly embraces the right to be free from sexual abuse at the hands of a public school employee." 103 F.3d at 506. In arriving at that holding, we discussed at some length the "impressive constitutional pedigree" of the right to bodily integrity, id., including, among other notable precedent, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), in which the Supreme Court "declared that `[a]mong the historic liberties' protected by the Due Process Clause is the right against `unjustified intrusions on personal security' at the hands of the state." Claiborne County, 103 F.3d at 506 (quoting Ingraham, 430 U.S. at 673, 97 S.Ct. 1401). We concluded that, although we had not theretofore addressed the precise issue, every circuit to do so had held that the Due Process Clause of the Fourteenth Amendment protects the right of a child to be free from sexual abuse inflicted by a public school teacher. Id. And we declared that "[sexual abuse under color of law] is so contrary to fundamental notions of liberty and so lacking of any redeeming social value, that no rational individual could believe that sexual abuse by a state actor is constitutionally permissible under the Due Process Clause." Id. at 507. Accordingly, we hold that at the time that Jane was allegedly abused by Lomnicki, her constitutional right to be free from such abuse was clearly established.
24
But this does not end the inquiry. Jane's claims against Lomnicki are not before us in this appeal, and her complaint does not contain any claim that any of these defendants physically abused her. Although her complaint appears to premise the liability of these defendants on their failure to supervise Lomnicki adequately, she does not advance that claim before us here. Rather, according to Jane's brief on appeal, she seeks to impose direct personal liability on defendants Slinde, Mayer, Herron, Silavs and Kment for violating her constitutional right to be "safe in school," a right which she claims has been established since 1949 and for which, remarkably, she cites Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).
25
For purposes of this appeal, we will assume that Jane's claims are in fact premised upon her right to be free from sexual abuse at the hands of a school official or teacher. Jane argues that defendants Slinde, Mayer, Herron and Kment violated that right by failing to take appropriate action in response to reports of Lomnicki's alleged abuse of children other than Jane; she argues that defendant Silavs violated that right by filing a report containing false information with regard to Lomnicki's alleged abuse of Jane herself. By their action or inaction, Jane contends, each of these defendants demonstrated deliberate indifference to the risk of harm to the school district's children and to Jane. Our inquiry, then, is whether Jane has alleged the deprivation of a constitutional right by these defendants.
26
Regardless of how Jane attempts to characterize the liability of these defendants, it is undisputed that but for the actions of Lomnicki, Jane would have suffered no injury. This case, therefore, falls squarely within the purview of this circuit's decision in Claiborne County. In that case, the plaintiff claimed that school administrators had failed to take appropriate action with regard to allegations that a teacher had engaged in sexual misconduct with a number of students other than the plaintiff; that the inaction amounted to deliberate indifference to the plaintiff's constitutional rights; and the administrators were therefore individually liable for the deprivation of the plaintiff's right to be free from the sexual abuse inflicted upon her by that teacher. Because the plaintiff sought to hold school administrators individually liable for constitutional injury caused directly by someone else, we held that "`supervisory liability' standards apply to resolve the claim[s]." Claiborne County, 103 F.3d at 513. Without reaching the defendants' claims of qualified immunity, we dismissed the plaintiff's claims because the facts did not support a claim of constitutional violation against the defendants.
27
The supervisory liability standards that we applied in Claiborne County are rooted in two prior cases: Bellamy v. Bradley, 729 F.2d 416 (6th Cir.1984), and Barber v. City of Salem, Ohio, 953 F.2d 232 (6th Cir.1992). We noted that under that precedent, it is not enough for the plaintiff to show that the defendant supervisors were sloppy, reckless or negligent in the performance of their duties. Rather, we said, "[a] plaintiff must show that, in light of the information the defendants possessed, the teacher who engaged in sexual abuse showed a strong likelihood that he would attempt to sexually abuse other students, such that the failure to take adequate precautions amounted to deliberate indifference to the constitutional rights of students." Claiborne County, 103 F.3d at 513 (internal quotation marks omitted). Put another way, we said, the plaintiff must show that the "defendants' conduct amounted to a tacit authorization of the abuse." Id. (citing Bellamy, 729 F.2d at 421). We concluded that
28
[d]efendants here were simply not confronted with such a widespread pattern of constitutional violations that their actions or inactions amounted to a deliberate indifference to the danger of Davis sexually abusing students. The steps they did take, and even those they failed to take and arguably should have taken, do not show that they "encouraged the specific incident of misconduct or in some other way directly participated in it." Nor did they authorize, approve, or knowingly acquiesce in Davis's unconstitutional conduct. They had no knowledge, constructive or otherwise, that Davis was abusing Doe.
29
Id. (internal citations omitted).
30
More recently, in Shehee v. Luttrell, 199 F.3d 295 (6th Cir.1999), we again addressed the issue of supervisory liability in the context of a § 1983 action. We held that liability must be based on "active unconstitutional behavior," and that a mere failure to act was not sufficient. In the absence of any allegation that the supervisors had "participated, encouraged, authorized or acquiesced in" the offending conduct, we held that the supervisors had, as a matter of law, "neither committed a constitutional violation nor violated a clearly established right." Id. at 300.
31
Other circuits have made even stronger statements with regard to supervisory liability. In Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir.2001), for example, the Seventh Circuit held that "to be liable for the conduct of subordinates, a supervisor must be personally involved in that conduct," and "supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see." Id. at 651 (internal quotation marks and citations omitted). The Eleventh Circuit has held that
32
[s]upervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [she] fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.
33
Braddy v. Florida Dep't of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.1998); but see Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001) (noting that personal involvement of a supervisory official may be established by, among other things, "deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.").
34
Applying those standards of supervisory liability to the defendants whose appeals are before us here, we conclude, as we did in Claiborne County, that the facts as the plaintiff portrays them do not support a claim that these defendants deprived her of a right secured by the Constitution. Turning first to Slinde, Mayer and Herron, the three defendants who were no longer employed by the Roseville School District at the time that Jane was allegedly abused by Lomnicki, we conclude that the facts as Jane presents them do not demonstrate as to any of these defendants, that the information he or she possessed about Lomnicki "showed a strong likelihood that he would attempt to sexually abuse other students, such that the failure to take adequate precautions amounted to deliberate indifference to the constitutional rights of students." Claiborne County, 103 F.3d at 513 (internal quotation marks omitted). Nothing that these defendants did or did not do encouraged Lomnicki's abuse of Jane, constituted participation in that abuse, or authorized, approved or knowingly acquiesced in it. Id.
35
Viewed from the perspective of the twenty-first century, the responses of these three defendants to reports of Lomnicki's conduct are disturbing. Hindsight reveals that Lomnicki was a pedophile. But our task is not to reconstruct the reality of Lomnicki's proclivities. Our task is to determine whether defendant Slinde, a quarter of a century ago, defendant Mayer, in 1979 and 1988, and defendant Herron, in 1988, were confronted with conduct that was "obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences," Braddy, 133 F.3d at 802, or with "such a widespread pattern of constitutional violations," Claiborne County, 103 F.3d at 513, that their actions demonstrated deliberate indifference to the danger of Lomnicki's sexually abusing students. We hold that they were not. We cannot weave the threads of such a pattern on the loom of hindsight, and the facts as Jane portrays them do not demonstrate anything more than negligence on the part of these defendants. Although Jane had a constitutional right to be free from sexual abuse at the hands of a school teacher or official, she did not have a constitutional right to be free from negligence in the supervision of the teacher who is alleged to have actually abused her. Negligence is not enough to impose section 1983 liability on a supervisor. Claiborne County, 103 F.3d at 513.
36
The remaining two defendants, Kment and Silavs, were employees of the Roseville School District at the time that Jane was allegedly abused by Lomnicki. As is the case with defendants Slinde, Mayer and Herron, we conclude that the facts as portrayed by Jane do not demonstrate that Kment or Silavs deprived Jane of a right protected by the Constitution. Defendant Silavs simply had no connection whatsoever with Lomnicki's abuse of Jane. Silavs filed a report with the Department of Social Services, advising that Jane claimed to have been abused by her reading teacher — whom Silavs' report did not name — and indicating concern that the abuse might be coming from someone in Jane's home. This report was filed approximately eighteen months after Lomnicki's contact with Jane had been terminated. Jane points us to no authority — and we have found none — that supports the proposition that her constitutional right to be free from sexual abuse at the hands of a school official may be violated by the long-after-the-fact filing of an erroneous or even false report of the abuse.
37
Finally, Jane does not allege that defendant Kment violated her right to be free from sexual abuse by a school official. It is undisputed that Jane cannot identify any of the dates on which Lomnicki allegedly abused her. It is undisputed that defendant Kment was not aware of any of Lomnicki's history of alleged misconduct with female students. Defendant Kment learned no earlier than the beginning of January 1993, of the police investigation into Lomnicki's alleged abuse of Sarah Williams. By early March, Kment had removed Lomnicki from the classroom. There is no dispute that Kment had no knowledge of Lomnicki's alleged abuse of Jane until the end of 1994. The facts as Jane portrays them do not demonstrate any causal connection between any action or inaction of Kment and any injury to Jane, and therefore do not allege a violation of any constitutional right.
CONCLUSION
38
Because we conclude that Jane has failed to allege the violation of an actual constitutional right by any of these defendants, we REVERSE the judgment of the district court denying the motions of the defendants for summary judgment on grounds of qualified immunity. We REMAND the matter to the district court for further proceedings consistent with this opinion.
Notes:
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation
1
According to the defendants' motion for summary judgment, only the § 1983 and Title IX claims remained against these defendants, the others apparently having been dismissed
2
During this time, Jane apparently displayed evidence of an abused child. She expressed anger by destroying toys, experienced night-mares, and was chronically fatigued. She was later diagnosed with Attention Deficit Hyperactivity Disorder (ADHD)
| {
"pile_set_name": "FreeLaw"
} |
408 F.2d 497
DENMAC CORPORATION, d/b/a the Ramada Inn, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 26440.
United States Court of Appeals Fifth Circuit.
March 4, 1969.
John H. Benckenstein, Lipscomb Norvell, Jr., Benckenstein & Norvell, Beaumont, Tex., for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Clifford Potter, Director, NLRB, Houston, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Herman M. Levy, Allen H. Sachsel, Attys., NLRB, for respondent.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
PER CURIAM:
1
Pursuant to new Rule 18 of the Rules of this Court, we have concluded that this case is of such character as not to justify oral argument. Accordingly, the Clerk has been directed to place the case on the summary calendar provided for such matters, and to notify the parties in writing.1
2
This case is before the Court upon the petition of Denmac Corporation, d/b/a as The Ramada Inn, in Beaumont, Texas, to review and set aside an order of the National Labor Relations Board, reported at 172 N.L.R.B. No. 25. The Board cross applied for enforcement.
3
The sole issue is whether substantial evidence on the record as a whole supports the Board finding that the Company refused to rehire a waitress in violation of Section 8(a) (3) and (1) of the Act.
4
After a hearing, the trial examiner found that the Company had engaged in and was engaging in unfair labor practices [Section 8(a) (3) and (1)], and recommended an appropriate order. The Board adopted the findings, conclusions, and recommendations of the examiner.
5
The waitress charged and the General Counsel complained that the Company refused to rehire her because of her activities on behalf of the Union, previously chosen to represent the employees of the Company, and because she engaged in other concerted activities.
6
The Company denied the charge and answered that its refusal to rehire was for good cause which had no connection with the reasons alleged by the General Counsel.
7
We have read and considered the record as a whole, which necessarily included the conflicting claims, contentions, and testimony of the parties. There was substantial evidence on the record as a whole to support the findings of the Board. This Court in this dispute, therefore, has no further function to perform, see Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) and its innumerable progeny.
The order of the Board will be
8
Enforced.
Notes:
1
In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. See Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158
| {
"pile_set_name": "FreeLaw"
} |
47 B.R. 257 (1985)
In re ALED CORPORATION, Debtor.
VALLEY FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff,
v.
ALED CORPORATION, Defendant.
Bankruptcy No. 81-05117 T, Adv. No. 83-0641.
United States Bankruptcy Court, E.D. Pennsylvania.
March 11, 1985.
Alfred S. Pierce, Nazareth, Pa., for debtor.
William K. Murphy, Easton, Pa., for plaintiff.
MEMORANDUM AND ORDER
THOMAS M. TWARDOWSKI, Bankruptcy Judge.
In this adversary proceeding, the plaintiff, pursuant to 11 U.S.C. § 362(d), seeks relief from the automatic stay as to the Chapter 11 debtor's real property so that it may proceed to foreclosure against said property. For the following reasons, we shall grant the requested relief.[1]
The parties have stipulated that, as of December 31, 1984, the subject property is encumbered by liens in the total amount of $822,620.39. The plaintiff's mortgages comprise $568,528.62 of this total. Liens senior to those of the plaintiff amount to $39,494.37. Liens junior to those of the plaintiff amount to $214,597.40.
We find that the fair market value of the subject property is $550,000.00, based upon our approval of the valuation evidence presented by Donald E. Goertel, the licensed and very highly qualified and experienced real estate appraiser who testified on the plaintiff's behalf. This valuation evidence consists of both Mr. Goertel's written appraisal report and his testimony at the hearing on this matter. We find his written appraisal report to be, in all material respects, thorough, well-reasoned, and in keeping with the highest standards of his profession.[2] We further believe that his testimony was convincing.
*258 The only "appraisal" testimony presented on the debtor's behalf was the testimony of the debtor's president and sole stockholder, who testified that he believes that the subject property has a fair market value of at least $1,000,000.00. However, in contrast to Mr. Goertel, the debtor's president is obviously not disinterested in the outcome of this proceeding, is not a licensed real estate appraiser, and is otherwise much less qualified to appraise real estate than is Mr. Goertel. In further contrast to Mr. Goertel, the debtor's president did not prepare a written appraisal report and did not, in our opinion, use established nor well-reasoned appraisal techniques in arriving at his $1,000,000.00 valuation figure.
The debtor argues that the appraisal by Mr. Goertel is seriously defective because it fails to take into account a particular access route to the subject real property which Mr. Goertel believed to be unavailable for use. We find, however, that the presumed lack of this access route was not a significant factor in Mr. Goertel's valuation, but rather that his valuation rested independently upon other convincing grounds, including the lack of demand for rental apartments in the Easton, Pennsylvania area.
Based upon our finding that the property has a fair market value of $550,000.00, the debtor obviously has no equity in the property. Furthermore, there is also no equity cushion in the property to protect the plaintiff's interest therein, even though we accept the debtor's contention that liens junior to those of the plaintiff are not counted in calculating the amount of encumbrances against the property for equity cushion purposes. See In re Mellor, 734 F.2d 1396 (9th Cir.1984). Thus, even when the junior liens of $214,597.40 are subtracted from the total encumbrances of $822,620.39, there remain encumbrances in the amount of $608,022.99 as opposed to the $550,000.00 fair market value. In that the debtor's defense to stay relief under 11 U.S.C. § 362(d)(1) is premised upon the existence of an equity cushion as adequate protection of the plaintiff's interest in the property,[3] we conclude that the plaintiff is entitled to relief from the stay pursuant to 11 U.S.C. § 362(d)(1).
ORDER
AND NOW, this 11th day of March, 1985, in accordance with the foregoing Memorandum, it is ORDERED that the automatic stay provisions of § 362(a) of the Bankruptcy Code be, and the same hereby are, MODIFIED to permit the plaintiff to pursue its legal rights and remedies against the debtor's real property, known as The Highlands, and located on South Delaware Drive, Easton, Northampton County, Pennsylvania, as more fully described in Exhibit A of the plaintiff's Complaint to Modify Stay.
NOTES
[1] This Memorandum constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052.
[2] We specifically note that Mr. Goertel, on page 5 of his appraisal report, included the swimming pool located on the debtor's real property as part of the real property in making his valuation.
[3] The debtor properly states on page 2 of its Memorandum of Law of November 19, 1984: "The basic issue before the Court is to determine if an equity cushion exists sufficient to adequately protect Valley Federal Savings and Loan Association, the first mortgagee." We also note that the debtor has been grossly delinquent in its mortgage payment obligations to the plaintiff and remains unable to meet these obligations.
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
PROTECT ENVIRONMENTAL §
SERVICES, INC., No. 08-11-00303-CV
§
Appellant/Cross-Appellee, Appeal from the
§
v. County Court At Law Number One
§
NORCO CORPORATION, of Tarrant County, Texas
§
Appellee/Cross-Appellant. (TC# 2007-056875-1)
§
OPINION
Protect Environmental Services, Inc. (“Protect” or “Appellant/Cross-Appellee”), in a
single issue, asserts that the trial court abused its discretion in awarding a reduced portion of the
attorney’s fees and expenses Protect incurred. Norco Corporation (“Norco” or
“Appellee/Cross-Appellant”), in a sole issue, alleges error by the trial court in denying Norco’s
motion for new trial alleging legal and factual insufficiency on, inter alia, the issues of actual and
apparent authority.1 For the reasons set out below, we affirm.
PROCEDURAL BACKGROUND
Protect filed suit seeking damages for, inter alia, breach of contract based on actual and
1
This case was transferred from the Second Court of Appeals to this Court pursuant to a docket equalization order
entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied precedent
of the Fort Worth Court of Appeals. See TEX.R.APP.P. 41.3.
apparent authority. Norco answered with a general denial of all allegations. A bench trial was
held on May 23, 2011, at which the trial court requested additional briefing on the issues of actual
and apparent authority and ratification. The trial court issued a letter ruling in favor of Protect and
signed a final judgment to that effect. The trial court awarded Protect damages of $11,616.34,
court costs, pre-judgment interest, and attorney’s fees of $3,500, for a total judgment of
$18,601.14. Neither party requested, and the trial court did not prepare, findings of fact and
conclusions of law.
Norco filed a motion for new trial arguing, the evidence was legally and factually
insufficient on, inter alia, the issues of actual and apparent authority, while Protect filed a motion
for new trial on the issue of attorney’s fees. The motions were overruled by operation of law and
both parties appealed.
FACTUAL BACKGROUND
Shortly after midnight on June 14, 2007, Raymond Bailey2 (“Bailey”), an owner-operator
truck driver working as an independent contractor for Norco, was picking up a load at the
VersaCold cold storage facility in Fort Worth when his truck was stolen. Bailey’s truck was
found a short while later in Lake Worth, where it was spilling diesel fuel into the water.
According to Bailey, he first realized that the truck was stolen approximately thirty
minutes after he arrived at VersaCold at 11:45 p.m. Bailey called 911 at 12:12 a.m. His next
call, using the VersaCold phone line, was to Deborah Burroughs (“Burroughs”), the Norco
dispatcher on-duty, to inform Norco of the theft of the truck. According to Bailey’s cell phone
records, he called Norco again at 1:18 a.m., 2:06 a.m., 7:05 a.m., and 10:48 a.m. Bailey did not
2
Bailey represented himself at trial, and was nonsuited at the conclusion of the evidence.
2
specifically recall when the police took him to where the truck was found, but guessed it was
between 1:30 a.m. to 2 a.m. Bailey initially stated Protect arrived at that location about 3 to 3:30
a.m., but later testified Protect had arrived around 2 a.m. Bailey testified that neither he nor
Burroughs had called Protect to the scene. Richard Cameron (“Cameron”), President and CEO of
Protect, presented Bailey with a contract. The contract was for Protect’s environmental clean-up
services. The environmental clean-up services were to “contain, control and clean up a release of
hazardous or regulated materials,” specifically, diesel fuel and other liquids released from the
tractor-trailer after it had been abandoned in Lake Worth. Bailey was told for the environmental
clean-up to begin, the contract needed to be signed. Bailey testified Cameron told him the
contract was between Protect and Norco. Bailey’s testimony regarding that evening was not
exact. He initially stated he had called Norco at approximately 2:06 a.m. and Burroughs had
“verbally told me to do whatever it took to take care of it.” He subsequently signed the contract
for the environmental clean-up services Cameron had provided to him. Bailey also
acknowledged he was not sure of the exact time when Protect arrived, and was unsure about what
he spoke to Burroughs about in the 2:06 a.m. call, but he definitely signed the contract prior to the
7:05 a.m. call.
Bailey understood he had signed the contract “on behalf of Norco, as a representative of
Norco.” Further, he believed he had authority to enter into the contract and bind Norco, but he did
not specifically tell Cameron he had such authority. Bailey thought the independent contractor
agreement3 he had signed with Norco authorized him to bind Norco. Bailey testified he believed
he had this authority because:
3
The independent contract agreement was not introduced as an exhibit at trial and was not included in the record
3
[F]rom 2005 when I leased on with the company, I had been the whole time picking
up shipments and doing everything that had Norco’s name on it and my name on it
as well under the pretense that I’m a representative of Norco.
And whenever I put signs on the side of my truck that says Norco, I have to
represent this company.4
Bailey also testified, in the three years since the incident, Norco never told him that he was
responsible for the contract or that they were not responsible for the contract.
Cameron testified when he arrived at the truck’s location, at approximately 2:15 to 2:30
a.m., he initially asked Bailey if he was “Mr. Norco.” After discovering Bailey was not, he told
Bailey, Protect would need him to contact Norco and obtain approval before Protect could begin
the environmental clean-up.5 Cameron then observed Bailey make a phone call. After Bailey
finished the phone call, he then told Cameron he had authorization to sign the clean-up contract.
Cameron further testified had Bailey told him that he did not have authorization to sign the
contract for Norco, Protect would not have begun clean-up operations. Bailey signed the contract
for Norco believing he had the authority to do so. Protect performed the services and completed
the work required in the contract that night.
Mindy Stanley (“Stanley”), a Protect employee, testified she both faxed and mailed the
signed contract and invoice to Norco on the morning of June 15, 2007, after the environmental
work was completed. The invoice charged Norco the cost of the clean-up which totaled
$11,616.34. Norco did not respond to the invoice or contract that was mailed and faxed to them.
The invoice was not paid and Norco did not assert Bailey’s lack of authority as the basis for
before us.
4
Cameron took pictures of the truck at the scene which showed Norco signs on the truck.
5
Cameron testified Protect does not enter into contracts with the drivers of trucks, as the expenses are usually more
than an individual driver can pay, so Protect contracts only with the trucking company or transportation company.
4
non-payment. Norco’s silence and non-payment prompted Protect to send reminder letters
regarding the payment of the invoice. Stanley also placed several follow-up calls to Norco
attempting to secure payment of the invoice, even speaking to the safety director on occasion, but
to no avail, the invoice remained unpaid without any explanation. Stanley testified up until
September 21, 2007, when the lawsuit was first filed, Norco made no attempt to either pay or
dispute the invoice or the contract signed by Bailey. Stanley testified Norco never advised her
they were refusing to pay the invoice because Bailey did not have authority to enter into the
contract on their behalf.
At trial, Burroughs testified that she received the first call from Bailey a little after
midnight advising the truck had been stolen. Bailey’s second call came about an hour later
explaining the police had arrived and were making a report. The third call from Bailey was
shortly after 2 a.m. informing her that the truck had been recovered. Bailey told Burroughs he
was going to let her know what was happening. After Bailey’s initial call, Burroughs left voice
mails for both the president and the safety director of Norco. Burroughs testified she arrived at
work about 7 a.m. that morning. According to Burroughs, Bailey called her at work telling her
Protect was going to clean up the fuel and oil left by the stolen truck in the lake. Burroughs
testified between 2 a.m. and when she arrived at the office, she never spoke to or authorized Bailey
to bind Norco to the Protect contract. Further, she said no dispatcher had the authority to
authorize Bailey to enter into such a contract on behalf of Norco. Burroughs never spoke to
anyone at Protect. When questioned by Bailey at trial, Burroughs testified about the procedures
drivers perform in picking up loads assigned to them by Norco, including the fact drivers sign bills
of lading and those bills are signed in the driver’s name.
5
Protect offered undisputed evidence of their attorney’s fees and expenses through both
exhibits and a brief narrative of Nicholas Nuspl (“Nuspl”), Protect’s counsel. Nuspl testified the
reasonable attorney’s fees and expenses Protect incurred were $8,924.82, and he anticipated there
would be fees of $2,500 for each level of appeal.
DISCUSSION
Protect asserts the trial court abused its discretion in awarding only a portion of the
undisputed and uncontradicted attorney’s fees and expenses Protect incurred. Norco alleges error
by the trial court in denying Norco’s motion for new trial alleging legal and factual insufficiency
on, inter alia, issues of actual and apparent authority. We will address Norco’s issue first.
Norco’s Appeal
Sufficiency of the evidence and denial of motion for new trial
In its sole issue, Norco contends that the trial court erred in denying Norco’s motion for
new trial on the issues of actual and apparent authority, ratification, and quantum meruit. Norco
contends the evidence on the facts presented is legally and/or factually insufficient to support a
judgment in favor of Protect on the issues of actual or apparent authority. Norco alleges Protect’s
sole reliance of Bailey’s belief and representation he was an agent of Norco was factually and
legally insufficient to establish actual or apparent authority.6 Norco asserts the trial court erred in
failing to grant a new trial because of the lack of evidence that Bailey had actual or apparent
authority to bind Norco or alternatively, the trial court’s rulings is against the great weight and
6
Norco also contends that Protect failed to affirmatively plead claims for either quantum meruit or ratification, so
therefore, waived those claims.
6
preponderance of the evidence.7
We review a trial court’s denial of a motion for new trial for abuse of discretion. See
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)(reviewing a trial court’s
refusal to grant a motion for new trial for abuse of discretion); In re R.R., 209 S.W.3d 112, 114
(Tex. 2006). The test for an abuse of discretion is not whether, in the opinion of the reviewing
court, the facts present an appropriate case for the trial court’s action, but “whether the court acted
without reference to any guiding rules and principles.” Cire v. Cummings, 134 S.W.3d 835, 839
(Tex. 2004). The trial court’s ruling should be reversed only if it was arbitrary or unreasonable.
Id.
Norco references portions of the trial court’s letter ruling as findings, however, it is well
settled law that letter rulings do not constitute formal findings of fact. Cherokee Water Co. v.
Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878 (Tex. 1990); Castillo v. August, 248 S.W.3d
874, 880 (Tex.App.--El Paso 2008, no pet.). Because of this principle, we determine the court
below did not enter any findings of fact in the instant case. See Cherokee Water Co., 801 S.W.2d
at 878; Castillo, 248 S.W.3d at 880.
In a trial, to the court, in which no findings of fact or conclusions of law are filed, the trial
court’s judgment implies all findings of fact necessary to support it. Spir Star AG v. Kimich, 310
S.W.3d 868, 871-72 (Tex. 2010). When a reporter’s record is filed, however, these implied
findings are not conclusive, and an appellant may challenge them by raising both legal and factual
7
In its brief, Norco presents its argument initially as error by the trial court in denying the motion for new trial, then
argues the judgment against Norco is legally and factually insufficient, both of which can be resolved on appeal. See
TEX.R.APP.P. 33.1(d)(“In a nonjury case, a complaint regarding the legal or factual sufficiency of the evidence . . .
may be made for the first time on appeal in the complaining party’s brief”). We will consider both of these points as
a single issue.
7
sufficiency of the evidence issues. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.
2003); Alford v. Johnston, 224 S.W.3d 291, 296 (Tex.App.--El Paso 2005, pet. denied). In
determining if some evidence supports the judgment and the implied findings of fact, we consider
only that evidence most favorable to the issue and disregard entirely that which is opposed to it or
contradictory in its nature. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The
judgment must be affirmed if it can be upheld on any legal theory that finds support in the
evidence. Rosemond v. Al–Lahiq, 331 S.W.3d 764, 767 (Tex. 2011).
Because Norco’s challenge to the breach of contract on legal sufficiency grounds is based
on adverse findings with respect to issues on which it did not have the burden of proof, Norco must
demonstrate on appeal that no evidence supports each adverse finding. See Croucher v.
Croucher, 660 S.W.2d 55, 57 (Tex. 1983). We view the evidence in the light most favorable to
the trial court’s findings, crediting favorable evidence if a reasonable fact finder could, and
disregarding contrary evidence unless a reasonable fact finder could not. See City of Keller v.
Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We sustain a “no evidence” issue only if there is no
more than a mere scintilla of evidence proving the element of the claim. St. Joseph Hosp. v.
Wolff, 94 S.W.3d 513, 520 (Tex. 2002).
Similarly, because Norco did not bear the burden of proof on the breach of contract claim,
based on factual sufficiency, Norco must show there was insufficient evidence to support the
relevant adverse findings. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d
190, 196 (Tex.App.--Austin 1992, no writ). We consider and weigh all of the evidence and set
aside the verdict only if the evidence that supports the finding is so weak as to be clearly wrong and
manifestly unjust. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.--Dallas 2006, no pet.). In
8
making this review, we are not a fact finder and will not pass upon the credibility of the witnesses
or substitute our judgment for that of the trier of fact, even if a different answer could be reached.
Long, 196 S.W.3d at 464; Bright v. Addison, 171 S.W.3d 588, 595 (Tex.App.--Dallas 2005, pet.
denied). The amount of evidence necessary to affirm a judgment is far less than that necessary to
reverse. Bright, 171 S.W.3d at 595.
Actual and Apparent Authority
Texas law does not presume agency and the party asserting agency has the burden of
proving it. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007). A “good faith belief” on
the part of a third-party, a person with whom it is dealing is the agent of another, is not enough to
bind the purported principal. 2616 S. Loop LLC v. Health Source Home Care, Inc., 201 S.W.3d
349, 356 (Tex.App.--Houston [14th Dist.] 2006, no pet.); Coker v. Cramer Fin. Grp., Inc., 992
S.W.2d 586, 595 (Tex.App.--Texarkana 1999, no pet.). Absent either actual or apparent
authority, an agent cannot bind a principal. Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907,
913 (Tex.App.--Dallas 2008, no pet.). Actual and apparent authority are both created through
conduct of the principal communicated either to the agent (actual authority) or to a third party
(apparent authority). Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007).
Actual authority, either express or implied, usually denotes that authority the principal (1)
intentionally confers upon the agent, (2) intentionally allows the agent to believe he possesses, or
(3) by want of due care allows the agent to believe he possesses. 2616 S. Loop, 201 S.W.3d at
356. Actual authority is based on written or spoken words or the conduct of the principal
communicated to the purported agent. Walker Ins. Servs. v. Bottle Rock Power Corp., 108
S.W.3d 538, 549-50 (Tex.App.--Houston [14th Dist.] 2003, no pet.). An agency relationship
9
based on actual authority may be implied through the conduct of either of the parties or from the
facts and circumstances surrounding the transaction in question. Walker Ins. Servs., 108 S.W.3d
at 550. In order to prove actual authority, therefore, there must be evidence that either (1) the
principal intentionally conferred authority on another to act as its agent, or (2) the principal
intentionally, or by a want of due care, allowed another to believe that the agent possessed
authority to act as the principal’s agent. See 2616 S. Loop, 201 S.W.3d at 356. In determining
whether a party had actual authority to act for another, we examine the words and conduct by the
principal to the alleged agent regarding the alleged agent’s authority to act for the principal. See
Walker Ins. Servs., 108 S.W.3d at 550.
Apparent authority, based on estoppel, arises:
[E]ither from a principal knowingly permitting an agent to hold [himself] out as
having authority or by a principal’s actions which lack such ordinary care as to
clothe an agent with the indicia of authority, thus leading a reasonably prudent
person to believe that the agent has the authority [he] purports to exercise.
Gaines, 235 S.W.3d at 182, quoting Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948
(Tex. 1998).
In other words, apparent authority arises when a principal intentionally or negligently
induces parties to believe that a person is the principal’s agent although the principal has not
conferred any authority on that person.8 Thomas Reg’l Directory Co., Inc. v. Dragon Prods., Ltd.,
196 S.W.3d 424, 427 (Tex.App.--Beaumont 2006, pet. denied). To establish apparent authority,
8
See generally RESTATEMENT (THIRD) OF AGENCY § 1.03 cmt. b (2006)(“[A]n agent is sometimes placed in a position
in an industry or setting in which holders of the position customarily have authority of a specific scope. Absent notice
to third parties to the contrary, placing the agent in such a position constitutes a manifestation that the principal assents
to be bound by actions by the agent that fall within that scope. A third party who interacts with the person, believing
the manifestation to be true, need not establish a communication made directly to the third party by the principal to
establish the presence of apparent authority . . . .”).
10
the Texas Supreme Court explained that:
[T]he standard is that of a reasonably prudent person, using diligence and discretion
to ascertain the agent’s authority. Thus, to determine an agent’s apparent
authority we examine the conduct of the principal and the reasonableness of the
third party’s assumptions about authority. [Citation omitted].
Gaines, 235 S.W.3d at 182-83.
The essential elements required to establish apparent authority are: (1) a reasonable belief
in the agent’s authority; (2) generated by some holding out or neglect of the principal; and (3) a
justifiable reliance on the authority. 2616 S. Loop, 201 S.W.3d at 356; see generally Sampson,
969 S.W.2d at 947-48 n.2 (listing the elements required to establish ostensible agency, and noting
that while courts use the terms ostensible agency, apparent agency, apparent authority, and agency
by estoppel interchangeably, that as a practical matter, there are no distinctions between them). 9
In determining whether apparent authority exists, “[a] court may consider only the conduct of the
principal leading a third party to believe that the agent has authority in determining whether an
agent has apparent authority.” 2616 S. Loop, 201 S.W.3d at 356.
Manifestations of apparent authority must take the form of “conduct by a person,
observable by others, that expresses meaning.” RESTATEMENT (THIRD) OF AGENCY § 1.03,
comment (b). Such conduct, however, “is not limited to spoken or written words . . . . Silence
may constitute a manifestation when, in light of all the circumstances, a reasonable person would
express dissent to the inference that other persons will draw from silence. Failure then to express
dissent will be taken as a manifestation of affirmance.” Id.
9
Under the doctrine of ostensible agency, a principal may be held liable under circumstances in which the principal’s
own conduct should equitably prevent it from denying the existence of an agency. Sampson, 969 S.W.2d at 947.
Ostensible agency is based on estoppel and applies when a principal, by its conduct, causes a third party to reasonably
believe that the putative agent was acting on behalf of the principal and the third party justifiably relied on such
conduct. Sampson, 969 S.W.2d at 948; RESTATEMENT (THIRD) OF AGENCY §§ 2.03, 3.03 (2006).
11
Application of law to evidence presented
In the instant case, the evidence indicates that prior to Protect commencing work, Cameron
presented Bailey with a contract between Protect and Norco and advised Bailey to contact Norco
and obtain approval before Protect could proceed. Cameron did so because Protect’s business
practices required authorization from the transportation company itself. The evidence is
contradictory regarding whether Bailey obtained approval to execute the contract from Burroughs,
with Bailey testifying he received authorization, Burroughs denying she gave such authorization.
Cameron testified he did not hear the specific conversation purportedly authorizing Bailey to enter
into the contract with Norco. However, Bailey immediately represented to him Norco had
authorized the work to proceed. Bailey signed the contract, and after the environmental clean-up
was completed, a copy of the signed contract and the invoice were sent to Norco via fax and mail in
a matter of hours. As the events occurred that night, Burroughs said she had advised Norco’s
safety director of the situation. Later, after the work was performed, Stanley spoke to David
Ogden, Norco’s safety director. According to Stanley and Cameron, during the four months
between the date of the initial invoice and up until suit was filed against Norco for non-payment,
Norco never once asserted they were refusing to pay the invoice based on Bailey’s alleged lack of
authority.
Considering the evidence most favorable to the issue and disregarding evidence to the
contrary, we find that the trial court’s judgment is supported by a theory of apparent authority.
Cameron was unsure of the scope of Bailey’s authority and sought confirmation, and in doing so
established a reasonable belief in Bailey’s authority. This is supported by Cameron’s testimony
regarding Bailey stepping away to make a call to Norco to seek authorization to enter into the
12
contract. While Bailey’s statement also indicates that he believed he was authorized to enter into
contracts for Norco cannot be proof of Norco’s acceptance in and of itself. Norco’s silence and
failure to object or refute the contract or the subsequent invoice can be shown as a manifestation of
acceptance. Protect, based on Norco’s manifestation of acceptance through its silence, could
justifiably rely on Bailey’s authority in such a circumstance, meeting the requirements of apparent
authority. 2616 S. Loop, 201 S.W.3d at 356. Certainly, Norco’s continued silence for over four
months regarding the issue of Bailey’s authority to bind them is indicia of their manifestation of
the acceptance of that contract and authority.
There is more than a mere scintilla of evidence supporting Protect’s claims and the
evidence presented was not so weak as to be clearly wrong and manifestly unjust. St. Joseph
Hosp., 94 S.W.3d at 520; Long, 196 S.W.3d at 464. As noted above, the amount of evidence
necessary to affirm a judgment is far less than that necessary to reverse. Bright, 171 S.W.3d at
595-96. Norco has failed to demonstrate either “no evidence” or “insufficient evidence” support
such a finding. Croucher, 660 S.W.2d at 57; Westech Eng’g, Inc., 835 S.W.2d at 196. Perhaps
another trial judge could have found, on the basis of this evidence, Bailey did not have apparent
authority to enter into the contract. However, the trial court’s finding to the contrary in the instant
case is not erroneous. Because the trial court’s judgment can be upheld on the basis of apparent
authority, the judgment must be affirmed. Rosemond, 331 S.W.3d at 767. Norco’s sole issue is
overruled.
Protect’s Appeal
In its sole issue, Protect asserts the trial court abused its discretion by awarding attorney’s
fees of $3,500 where the evidence presented indicates Protect incurred attorney’s fees and
13
expenses of $8,924.82, and thus the trial court’s decision lacked factual sufficiency.
Generally, the amount of money awarded as attorney’s fees rests within the sound
discretion of the court. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.
1990). Regarding attorney’s fees, the analysis of whether or not a court abuses its discretion, is
determined by a two-step inquiry: (1) did the trial court have sufficient information upon which
to exercise its discretion; and (2) if so, did the trial court err in exercising that discretion. Alford,
224 S.W.3d at 298. A court abuses its discretion when it acts without reference to guiding rules
and principles, i.e., when it acts in an arbitrary and unreasonable manner. F–Star Socorro, L.P. v.
City of El Paso, 281 S.W.3d 103, 106 (Tex.App.--El Paso 2008, no pet.).
Protect presented uncontroverted testimony from their counsel, along with supporting
exhibits, reasonable attorney’s fees and expenses incurred by Protect were $8,924.82 and it was
anticipated additional fees of $2,500 for each level of appeal. According to the invoice presented,
the cost of the clean-up was $11,616.34.
In general, an interested witness’s testimony, though uncontradicted, does no more than
raise a fact issue to be determined by the fact finder. Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62
(Tex.App.--El Paso 2000, no pet.). However, an exception to this rule exists where the
circumstances of the testimony are clear, direct, and positive and free from contradiction,
inaccuracies, and other circumstances tending to raise suspicions thereon. Ragsdale, 801 S.W.2d
at 882. In such a case, the testimony may be taken as true as a matter of law. Id. This exception
is especially true where the opposing party has the same opportunity to contradict, or raise doubts
about the testimony, and fails to do so. Id. This is not to say, however, that an award of the
claimed amount is necessary in every case where uncontradicted testimony is offered. Id; Welch
14
v. Hrabar, 110 S.W.3d 601, 610 (Tex.App.--Houston [14th Dist.] 2003, pet. denied). If the
evidence is unreasonable, or not credible in some way, then such evidence only raises a fact issue
to be determined by the fact finder. Ragsdale, 801 S.W.2d at 882. Trial judges can draw on their
common knowledge and experience as lawyers and as judges in considering the testimony, the
record, and the amount in controversy in determining attorney’s fees. Leggett v. Brinson, 817
S.W.2d 154, 157 (Tex.App.--El Paso 1991, no writ); see also Bocquet v. Herring, 972 S.W.2d 19,
22 (Tex. 1998)(dissenting opinion).
The evidence in this case regarding the amount of attorney’s fees was uncontroverted by
any testimony, and Protect contends that it was error for the trial court to reduce the requested
award. This would be true unless the trial court found that attendant circumstances contradicted
the requested fees or if the evidence was unreasonable or questionable. Because findings of fact
and conclusions of law were neither filed nor requested by Protect in this case, we have no way to
ascertain the trial court’s reasoning. As noted above, if findings of fact and conclusions of law are
neither filed nor requested, the judgment of the trial court implies all necessary finding of fact to
support it. Spir Star AG, 310 S.W.3d at 871-72; Moncrief Oil Intern., Inc., 332 S.W.3d at 7.
Therefore, the judgment in this case implies that the trial court found the requested attorney’s fees,
including the fees in the event of an appeal,10 contradicted by attendant circumstances or in some
way were found to be unreasonable. Protect has not shown that the trial court abused its
discretion and its sole issue is therefore overruled.
CONCLUSION
Having overruled both Protect’s and Norco’s issues, the judgment of the trial court is
10
See, e.g. Huckeby v. Lawdermilk, 709 S.W.2d 331, 334 (Tex.App.--Eastland 1986, no pet.)(finding no abuse of
discretion by trial court in not awarding attorney’s fees in event of appeal).
15
hereby affirmed.
May 8, 2013
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
16
| {
"pile_set_name": "FreeLaw"
} |
173 S.W.3d 916 (2005)
METRO MEDICAL IMAGING, LLC, Appellant,
v.
COMMONWEALTH of Kentucky, Cabinet for Health Services, Certificate of Need Office; Baptist Healthcare System, Inc.; Norton Hospitals, Inc.; Caritas Health Services, Inc.; and Jewish Hospital Healthcare Services, Inc., Appellants.
No. 2004-CA-001463-MR.
Court of Appeals of Kentucky.
September 16, 2005.
Bruce A. Brightwell, Louisville, KY, for appellant.
Michael D. Baker, Lexington, KY, Marian J. Hayden, Frankfort, KY, Mathew R. Klein, Jr., Covington, KY, for appellee.
Before COMBS, Chief Judge; HENRY and TACKETT, Judges.
OPINION
HENRY, Judge.
Metro Medical Imaging (MMI) operates diagnostic imaging facilities at locations on Dupont Circle, Newburg Road and Dixie Highway in Louisville. The Cabinet for Health and Family Services determined that MMI is not exempt from either the Certificate of Need or licensing requirements of KRS[1] Chapter 216B, and must therefore apply for a Certificate of Need and obtain a license in order to continue in operation. MMI attempted to appeal the Cabinet's ruling pursuant to the provisions of KRS 216B.115(2).
*917 The pertinent facts of the case are not in dispute, and only one issue is presented on appeal; that is, whether the Franklin Circuit Court properly dismissed MMI's appeal for failure to comply with the requirements of the statute. MMI filed a petition for review of the Cabinet's ruling in the Franklin Circuit Court within thirty days after notice of the final decision, but failed to cause summons to be issued on the petition until the thirty-fourth day after notice of the final decision. The circuit court granted the appellees' motion to dismiss, and this appeal followed.
KRS 216B.115 says, in its entirety:
(1) An appeal to the Franklin Circuit Court may be taken from any final decision of the cabinet with respect to a certificate-of-need application, a certificate of need, or a license, by any party to the proceedings.
(2) An appeal may be taken by filing a petition for review in the Franklin Circuit Court within thirty (30) days after notice of the final decision unless a request for reconsideration has been filed, in which case the petition shall be filed within fifteen (15) days of the cabinet's decision not to reconsider or notice of its decision on reconsideration. The petition shall state completely the grounds upon which the review is sought and shall assign all errors relied upon. The petitioner shall serve a copy of the petition to each person who was a party to the proceedings. Summons shall be issued upon the petition directing the adverse party or parties to file an answer within twenty (20) days after service of summons. The cabinet shall, upon being served with the summons and within thirty (30) days thereafter, file a copy of the record, duly certified by the secretary, the cost of the record to be taxed as costs upon appeal. In lieu of filing of the record, an abstract thereof may be filed if all parties to the appeal agree. (Emphasis added).
As the Franklin Circuit Court noted in its Opinion and Order, the dispute in this case concerns the interpretation and application of KRS 216.115. We review such matters de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, 983 S.W.2d 488, 490-91 (Ky.1998), citing Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 886 (Ky.1996) and Epsilon Trading Co., Inc. v. Revenue Cabinet, 775 S.W.2d 937, 940 (Ky.App.1989).
It is clearly established in our law that appellate review of the acts of administrative agencies is not a matter of right, but of legislative grace. Therefore "[w]hen grace to appeal is granted by statute, a strict compliance with its terms is required." Bd. of Adjustments of the City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky.1978). If MMI failed to comply with statutory requirements no appeal is possible because "the court lacks jurisdiction or has no right to decide the controversy." Id. (Citations omitted).
MMI concedes that the statute requires that a summons be issued, but argues that there is no requirement that it be issued within thirty days after notice of the final decision. In MMI's view it is necessary for us to add words to the statute supplying the requirement of causing summons to be issued within thirty days, which the rules of statutory construction will not permit us to do. We disagree.
In this case MMI caused summons to be issued four days after the time to file an appeal had expired, after the Cabinet filed a motion to dismiss. The dispositive question in the case can be put as: Does the phrase "[s]ummons shall be issued upon the petition" mean that summons must be issued within the same time period as the *918 petition for review, or may summons be issued at a later time? Or, to be more succinct, what does "upon the petition" mean in this statute? The circuit court concluded that by the "plain language" of the statute, summons is required to be issued within the thirty-day period. The court gave no authority in support of its conclusion.
The discussion found at Com., Transp. Cabinet, Dept. of Highways v. City of Campbellsville, 740 S.W.2d 162, 164 (Ky.App.1987), while not dispositive, is informative on the issue. As discussed there, "an appeal to the circuit court from an order of an administrative agency is not a true appeal but rather an original action." Citing KRS 23A.010(4) and Sarver v. County of Allen, 582 S.W.2d 40 (Ky.1979). That being true, the actions necessary to take an appeal from an administrative agency to the circuit court are those actions necessary to commence a civil action. "Under our system, civil actions are commenced by (1) the filing of a complaint (petition), and (2) the issuance of summons (or warning order) in good faith." City of Campbellsville at 164, citing KRS 413.250 and CR[2] 3. If the action is commenced by the filing of the petition and the issuance of summons, and only one time period is specified, it must follow that both actions must be taken within the period of time provided in the statute. We also particularly note the language of CR 3: "A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith." (Emphasis added). In the rule it is clear that "thereon" refers to the complaint. The wording admits of only one interpretation: that is, that an action is commenced by filing a complaint, and issuing a summons or warning order on that complaint. It is clear to us that "upon the petition" in KRS 216B.115(2) means the same thing as "thereon" in CR 3.
In City of Campbellsville the court held that the filing of a petition and the issuance of summons commenced the action. Once the action was properly commenced, delay in serving the proper party was not fatal to the action. City of Campbellsville at 164. On the other hand, failure to cause the summons to be timely issued bars a cause of action even if the complaint has been timely filed. CR 3; Delong v. Delong, 335 S.W.2d 895 (Ky.1960); Eades v. Clark Distrib. Co., 70 F.3d 441 (6th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1545, 134 L.Ed.2d 649 (1996). Here the action was not commenced within the prescribed time, leaving the circuit court without jurisdiction over the case. Bd. of Adjustments of the City of Richmond v. Flood at 2.
The Opinion and Order of the Franklin Circuit Court is affirmed.
ALL CONCUR.
NOTES
[1] Kentucky Revised Statutes.
[2] Kentucky Rules of Civil Procedure.
| {
"pile_set_name": "FreeLaw"
} |
BLD-264 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1651
___________
ASSEM A. ABULKHAIR,
Appellant
v.
UNITED STATES POSTAL SERVICE; UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-13-cv-07796)
District Judge: Honorable Kevin McNulty
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect
or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
July 9, 2015
Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
(Opinion filed: July 20, 2015)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Assem A. Abulkhair, proceeding pro se and in forma pauperis, appeals the District
Court’s order dismissing his complaint. For the reasons set forth below, we will
summarily affirm the District Court’s order.
Abulkhair filed this action against the United States Postal Service and the United
States asserting various claims of invasion of privacy, negligence, and infliction of
emotional distress pursuant to the Federal Tort Claims Act, based on allegations that the
government tampered with his mail because he is a Muslim of Middle Eastern origin.
The defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the
complaint. The District Court granted the defendants’ motion to dismiss and entered an
order dismissing the complaint without prejudice, but it did not expressly grant leave to
amend. Rather than filing an amended complaint, Abulkhair filed a notice of appeal.
Normally, an order that “dismisses a complaint without prejudice is neither final
nor appealable” under 28 U.S.C. § 1291. Borelli v. City of Reading, 532 F.2d 950, 951
(3d Cir. 1976). Such an order becomes final and appealable, however, if the plaintiff
intends to “stand on his complaint” instead of amending it. Id. at 951-52. Here, instead
of seeking leave to amend his complaint, Abulkhair filed a timely notice of appeal. He
also submitted a response insisting that the complaint complied with the pleading
requirements and foregoing the opportunity to amend his complaint. Therefore, the
District Court’s order is final and appealable because Abulkhair elected to stand on his
complaint. Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir. 2007) (concluding
2
that a plaintiff had elected to stand on her complaint where she did not seek to correct the
purported pleading deficiencies, but instead repeatedly asserted that her complaint was
sufficient as filed). Thus, we have jurisdiction over Abulkhair’s appeal.
Having determined that jurisdiction is proper, we may summarily affirm the
decision of the District Court if no substantial question is presented on appeal. 3d Cir.
L.A.R. 27.4; I.O.P. 10.6. We exercise plenary review over the District Court’s dismissal
order. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). To survive a
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. A claim has facial plausibility when the plaintiff pleads factual content
that “allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
The District Court properly dismissed Abulkhair’s complaint. The complaint fails
to rise above general allegations and conjecture to offer any factual allegations that could
plausibly support Abulkhair’s alleged tort claims. Abulkhair alleged that, for over a
decade, the United States Postal Service and the United States, acting through an
unknown number of its agents and employees, including an unnamed postmaster at his
local post office, tampered with his mail because he is a Muslim of Middle Eastern
3
origin. Abulkhair complained to the local post office staff and various government
offices about the tampering, which he alleged consisted of opening his private mail and
intercepting and delaying his outgoing mail. Apart from identifying Abulkhair’s local
post office, however, the complaint contains no allegations that “nudge[]” his claim of a
decade-long mail tampering scheme “across the line from conceivable to plausible.”
Iqbal, 556 U.S. at 680 (internal quotation marks omitted). The pleading standard “does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Id. at 678. Here, that is all Abulkhair has
pleaded. As the District Court correctly determined, the complaint’s allegations
regarding the alleged campaign to tamper with Abulkhair’s mail amount only to the sort
of “‘naked assertion[s]’devoid of ‘further factual enhancement’” that fail to meet the
minimum pleading standards. Id. at 678 (quoting Twombly, 550 U.S. at 557).
There being no substantial question presented on appeal, we will summarily affirm
the District Court’s order dismissing Abulkhair’s complaint. See 3d Cir. L.A.R. 27.4;
I.O.P. 10.6. Appellant’s motion to supplement the record is denied.
4
| {
"pile_set_name": "FreeLaw"
} |
NO. 07-02-0130-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 9, 2003
______________________________
ANTHONY J. BARBARO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-434,611; HON. JIM BOB DARNELL, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
In one issue, appellant Anthony J. Barbaro appeals his conviction for burglary.
Through it, he argues that he received ineffective assistance of counsel. The latter was
purportedly ineffective due to a conflict of interest. We overrule the issue and affirm the
judgment of the trial court.
Background 1
1
The facts surrounding the offense are not relevant to appellant’s issue on appeal, and we will
therefore not recite them.
At trial, counsel for appellant revealed to the trial court that he had represented a
particular State’s witnesses in a “DWI” prosecution and a divorce approximately ten years
earlier. Neither the criminal charge nor the divorce were related, in any way, to the
accusation against appellant. Nevertheless, “because of [his] relationship with this
witness, [he could not] adequately cross-examine her on behalf of” appellant, counsel
uttered. So too did he assert that “[i]t would be a conflict of interest for [him] to vigorously
cross-examine a person that [he has] represented and to check her background and so
forth in representing” appellant. “It would be to [appellant’s] detriment that [counsel] would
be his attorney when this witness testifies,” counsel concluded. In response to questioning
from the court, appellant’s trial attorney then stated that it was his “duty to vigorously be
an advocate for” appellant, that it was his “duty not to reveal any secrets of any client that
I have ever represented in the past,” that this “creates a conflict of interest in this
situation,” that he “can’t adequately cross-examine this witness because [he had]
represented her before,” that it was “a classic conflict of interest . . . and it require[d] a
mistrial, and . . . [him] to withdraw . . . if this witness testifies.” However, counsel did not
state that this witness had previously informed him of any confidential or other information
the disclosure of which would be disadvantageous to her or advantageous in any way to
appellant. Nor did he aver that 1) he garnered information during his representation of the
witness the disclosure of which would breach prior confidences or 2) he had information
arising from his past representation of the witness which impeded his ability to represent
appellant. Indeed, when questioning the witness for purposes of developing a bill of
2
exceptions, trial counsel said: “I really don’t remember much about your cases, but I
remember you.”
The trial court refused to allow counsel to withdraw. So too did it deny counsel’s
motion for mistrial.
Applicable Law
Counsel may be ineffective when operating under a conflict of interest. Ex parte
Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997), overruled in part on other grounds
by Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003). However, until the accused
shows that his attorney is or was actively representing such interests, he has not
established the predicate for a claim of ineffective assistance. Cuyler v. Sullivan, 446 U.S.
335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347 (1980); see also Nethery v. State,
29 S.W.3d 178, 188 (Tex. App.–Dallas 2000, pet. ref’d). Moreover, the conflict must be
actual, as opposed to speculative or potential. James v. State, 763 S.W.2d 776, 781-82
(Tex. Crim. App. 1989); Thompson v. State, 94 S.W.3d 11, 16 (Tex. App.–Houston [14th
Dist.] 2002, pet. ref’d). And, it is actual when counsel is required to make a choice
between advancing his client’s interest in a fair trial or advancing other interests (including
his own) to the detriment of his client’s interest. Ex parte Morrow, 952 S.W.2d at 538;
Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).
Application of Law to Facts
It is undisputed that the matters on which counsel represented the witness ten years
before were completely unrelated to the criminal prosecution of appellant. See Charleston
3
v. State, 33 S.W.3d 96, 101 (Tex. App.–Texarkana 2000, pet ref’d) (considering when the
prior representation occurred and whether it involved a matter substantially related to that
at hand). Furthermore, counsel recalled little about the matters but simply remembered
the witness. And, though he thought there existed a conflict of interest, counsel so
believed simply because he represented the witness at one time. Again, he said nothing
about previously obtaining confidential information which was in any way relevant to
appellant’s case or which could be used in any way to advance or impugn the interests of
appellant, the witness or anyone else. See Thompson v. State, 94 S.W.3d at 21-22
(refusing to hold that an actual conflict existed since counsel failed to reveal the nature of
the conflict or explain the adverse impact, if any, on appellant of the prior representation).
This is not a situation, as in Ramirez v. State, 13 S.W.3d 482 (Tex. App.–Corpus
Christi 2000, pet. dism’d), wherein counsel specifically advised the court that he obtained
confidential information as a result of previously representing the witness and which
hampered his ability to assist appellant. See Brink v. State, 78 S.W.3d 478, 485 (Tex.
App.–Houston [14th Dist.] 2001, pet ref’d) (wherein a conflict existed because counsel
represented that he “was not sure how he would cross-examine Gipp and attack her
credibility without using privileged information obtained while he was her attorney”).
Again, counsel said nothing about having any such information and could recall little about
the matters involved in the representation. Nor did he represent both appellant and the
witness at the same time, as in Ramirez. Here again, counsel represented the witness
approximately ten years before the trial of appellant in matters unrelated to the charges
against appellant.
4
In short, having represented a witness at a prior time does not alone mean that
counsel is required to make a choice between advancing his current client’s interests in
a fair trial or advancing other interests to the detriment of his client. More is required
before it can be said that a conflict actually exists. Because that extra data is missing
here, the trial court could have reasonably concluded that it had before it a potential or
speculative conflict, and that does and did not warrant a mistrial or the removal of counsel.
Thus, the trial court did not err in refusing counsel’s requests to withdraw and for mistrial.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
5
| {
"pile_set_name": "FreeLaw"
} |
145 F.3d 362
Palmerv.U.S.*
NO. 96-9485
United States Court of Appeals,Eleventh Circuit.
May 12, 1998
1
Appeal From: S.D.Ga. ,No.93-00142-CV-1-DHB ; Appealing after remand 83 F.3d 436
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
32 Wn. App. 836 (1982)
650 P.2d 250
THE TRAVELERS INSURANCE COMPANIES, Appellant,
v.
THE NORTH SEATTLE CHRISTIAN AND MISSIONARY ALLIANCE, ET AL, Respondents.
No. 9111-5-I.
The Court of Appeals of Washington, Division One.
August 23, 1982.
Houger, Garvey, Schubert, Adams & Barer and John R. Allison, for appellant.
Robbins, Merrick & Kraft, Thomas J. Kraft, Moren, Lageschulte & Cornell, Roger Lageschulte, Phillip Offenbacker, *838 Krutch, Lindell, Donnelly & Judkins, and Thomas Keller, for respondents.
RINGOLD, J.
This is an appeal by the Travelers Insurance Companies (Travelers) from a judgment declaring the extent of Travelers' duty to defend and provide coverage for its insured, the North Seattle Christian and Missionary Alliance (Church). The Church cross-appeals the trial court's refusal to award attorney's fees. We affirm most of the declaratory judgment, and we reverse the denial of attorney's fees.
On May 22, 1976, an airplane piloted by Robert Gene Wacker crashed near Snoqualmie Pass while on a flight to Spokane from Paine Field in Everett. The pilot and all passengers were killed. At the time of the crash, the airplane was leased to the Church and was used and operated by the Church. Two wrongful death actions were filed and both complaints alleged that the deaths were caused by the negligence and recklessness of the pilot and the Church. The complaints also alleged the deaths were caused by the Church's breach of an agreement to provide safe transportation.
At the time of the airplane crash, the Church was covered by a liability insurance policy issued by Travelers. The policy provided in relevant part:
[Coverage A and B] The Travelers will pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed by law upon the Insured, or assumed by the Insured under any oral or written contract or agreement, as damages because of
(a) bodily injury or
(b) property damage to which this insurance applies, caused by an occurrence.
The Travelers shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ...
...
*839 Exclusions:
1. Coverages A and B do not apply:
...
(b) except with respect to liability assumed by the Insured under any contract or agreement, to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any automobile or aircraft owned or operated by or rented or loaned to any Insured; or
(2) any other automobile or aircraft operated by any person in the course of his employment by any Insured
...
The Church tendered the defense of the wrongful death actions to Travelers, and the insurance company initiated this declaratory judgment action on the issues of policy coverage and the duty to defend. Named as defendants were the Church, the estate and surviving spouse of Robert Wacker, and the plaintiffs in the wrongful death actions.
The trial court denied motions for summary judgment and decided the matter at a bench trial. The court concluded that Travelers has no duty to defend those claims that are exclusively tort claims and that the Church must bear the expense of defending such claims. The court held, however, that Travelers has a duty to defend those claims concerning the alleged breach of an agreement to provide safe transportation. The trial judge also concluded that the policy covers any such agreement that can be implied from the acts or statements of the parties. The court left the issue of the existence of an agreement to provide safe transportation for decision in the trial of the wrongful death actions.
DUTY TO DEFEND AND POLICY COVERAGE
[1] In National Steel Constr. Co. v. National Union Fire Ins. Co., 14 Wn. App. 573, 575, 543 P.2d 642 (1975), the court stated the applicable rule requiring the insurer to defend:
The law is clear. An insurer's duty to defend arises when a complaint against its insured is filed and is to be determined from the allegations of the complaint. Holland *840 Am. Ins. Co. v. National Indem. Co., 75 Wn.2d 909, 454 P.2d 383 (1969).
Thus, the insurer has a duty to defend if proof of the facts alleged in the complaint would render the insurer liable under the policy. Seaboard Sur. Co. v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 81 Wn.2d 740, 504 P.2d 1139 (1973); Transamerica Ins. Co. v. Preston, 30 Wn. App. 101, 632 P.2d 900 (1981). In the application of this rule, the pleadings must be liberally construed, and if they are subject to an interpretation that creates a duty to defend, the insurer must comply with that duty. R.A. Hanson Co. v. Aetna Ins. Co., 26 Wn. App. 290, 612 P.2d 456 (1980).
Here, the policy provides coverage for liability imposed by law and liability assumed by the insured under any oral or written contract or agreement. Excluded from that coverage is liability arising out of the use of aircraft. An exception to the aircraft exclusion applies to "liability assumed by the Insured under any contract or agreement." Thus, no coverage is provided for the liability arising out of the Church's use of the airplane unless the Church assumed that liability under a contract or agreement. The allegation of an agreement to provide safe transportation, if proved, could amount to an agreement to assume such liability. The complaints are therefore subject to an interpretation that creates a duty to defend in the limited manner required by the trial court. Seaboard; Hanson.
Travelers disputes the foregoing analysis contending that the breach of an alleged agreement to provide safe transportation creates a liability arising under a contract, but does not amount to a liability resulting from a contractual assumption of liability. It is Travelers' position that an agreement to assume liability is an agreement to assume an obligation not otherwise imposed by law as, for example, to provide indemnity. Even under this analysis, Travelers still has a duty to defend the Church. An agreement to provide safe transportation could be an agreement to assume strict liability or to exercise the highest degree of care. The *841 Church, however, may be a contract carrier not engaged in the business of carrying passengers, and the duty imposed by law on such a contract carrier is merely the duty to exercise reasonable care. See Jablinsky v. Continental Pac. Lines, Inc., 58 Wn.2d 702, 364 P.2d 793 (1961). Accordingly, the Church may have assumed an obligation not otherwise imposed by law, i.e., to exercise the highest degree of care or assume strict liability. The trial court properly held that Travelers must defend those portions of the complaints that allege a breach of an agreement to provide safe transportation.
Travelers argues that the trial court's broad reading of the policy renders the aircraft exclusion a nullity, particularly if the assumption of liability is found in an implied contract. It is Travelers' position that because breach of the duty imposed by law to exercise reasonable care is excluded from coverage, the indistinguishable breach of an implied contract to assume liability for one's own negligence must also be excluded to avoid rendering the aircraft exclusion a nullity. This argument erroneously assumes that the trial court entered a more specific judgment and imposed a duty to defend a claim based upon the Church's alleged breach of an agreement to assume liability for its own negligence. No such allegation exists, and the trial court properly avoided addressing such a question. Travelers' contentions in this regard are not germane to the trial court's ruling in this declaratory judgment action, and the judgment leaves the aircraft exclusion effective if the alleged agreement is not proved.
[2] Travelers' argument that implied agreements are not covered is also without merit. Because the language in the policy is "any contract or agreement" (italics ours) and there is no language limiting this provision, implied agreements to assume liability are not excluded from coverage. If Travelers intended to exclude implied contracts from coverage, it could have drafted language that extended aircraft coverage only to express agreements to assume liability. An average reasonable insured would understand the unconditional *842 exception to the exclusion in terms of its ordinary meaning, i.e., that coverage extended to the assumption of liability under any contract or agreement. See Shotwell v. Transamerica Title Ins. Co., 91 Wn.2d 161, 588 P.2d 208 (1978). "Any" is a broad and inclusive term, and the phrase "liability assumed by the Insured under any contract or agreement" is broad enough to include both express and implied agreements to assume liability. See S.L. Rowland Constr. Co. v. Beall Pipe & Tank Corp., 14 Wn. App. 297, 540 P.2d 912 (1975).
[3] Travelers' remaining arguments are based on the facts underlying the wrongful death actions. Travelers argues that the language in a permission slip signed by the parents of the deceased minors expressly disavows liability and negates any duty to defend.[1] The insurer also argues that there is no proof of any agreement to provide safe transportation to the adult passenger and that the evidence does not suggest the existence of any implied contracts to provide safe transportation. These factual contentions are irrelevant to the issue of the duty to defend, which is to be determined from the language of the policy and the allegations in the complaint filed against the insured. It does not depend upon the actual facts that the plaintiffs must eventually establish in order to recover in the wrongful death actions. Holland Am. Ins. Co. v. National Indem. Co., 75 Wn.2d 909, 454 P.2d 383 (1969).
The policy provides that Travelers has a "duty to defend ... even if any of the allegations ... are groundless, false or fraudulent ..." This agreement to defend is a valuable provision of the policy that exists independently of the *843 agreement to pay a judgment. The provision would be rendered virtually meaningless if Travelers were allowed to avoid its duty to defend by using a declaratory judgment action to prove that the allegations in the wrongful death actions were groundless, false or fraudulent. Holland America. The Church and the wrongful death plaintiffs are not opponents in this declaratory judgment proceeding, and the factual dispute between them should be resolved in the wrongful death actions with Travelers defending the Church to the extent required by the policy.
On the question of coverage, the trial court declared that Travelers shall pay judgments only if the plaintiffs prove at the wrongful death trials that the Church breached an agreement to provide safe transportation. The court properly held that "[t]he Travelers will provide coverage ... for ... liability arising from the accident only with respect to liability assumed ... under a contract or agreement." For the reasons already stated, we will not decide the factual questions concerning the alleged existence of the agreements despite requests by the parties that we do so. Those are issues that should be submitted to the trier of fact at the wrongful death trials.
THE PILOT
Robert Wacker, the pilot, was a member of the Church, and the trial court concluded that he was an "insured" under language in the policy that designated a stockholder as a person insured by the policy. The court reasoned that the Church is a nonprofit corporation whose members are the equivalent of stockholders and that the stockholder provision would be a nullity unless it applied to a church member.[2] The respondents support this decision by arguing that, although a nonprofit corporation does not have stockholders, the policy must be interpreted so that every *844 provision is given meaning.
The policy provides that "[e]ach of the following is an Insured to the extent set forth below: ... any ... stockholder ... while acting within the scope of his duties as such ..." To avoid reading this coverage out of the policy, the trial court decided to treat members of a nonprofit corporation as the equivalent of stockholders. There is an arguable statutory basis for this analogy. See RCW 24.03.030, .065. It is therefore conceivable that the policy here could be construed to extend coverage to Church members who incur a liability arising out of the performance of duties that are analogous to the duties of stockholders, such as participating in a membership meeting. The average reasonable Church member, however, would not expect the stockholder coverage to apply to the facts here. The pilot, though apparently acting as a nonemployee[3] agent of the Church, was engaged in no conduct that could reasonably be viewed as analogous to functions within the scope of the duties of a stockholder. We therefore reverse that portion of the trial court's judgment that declared the pilot was "insured" as a stockholder under the policy.
ATTORNEY'S FEES
The Church asked the trial court to award attorney's fees for its successful defense of the declaratory judgment action. The trial court refused to award attorney's fees, and the Church has filed a cross appeal from this decision.
[4] The Church relies primarily on dicta in Farmers Ins. Co. v. Rees, 96 Wn.2d 679, 638 P.2d 580 (1982), reconsideration granted, June 9, 1982. In Farmers, at page 682, the court interpreted the following policy provision concerning "Defense, Settlement, Supplementary Payments."
The Company will pay, in addition to the applicable limits of liability:
...
(d) reasonable expenses incurred by the insured at *845 the Company's request, including actual loss of wages or salary (but not other loss of income) not to exceed $25 per day because of his attendance at hearings or trials.
The court noted that this provision addressed the insurer's duty to defend and provided for supplemental payments to the insured of reasonable expenses incurred at the company's request. The court reasoned that such expenses occurred when the insured paid attorney's fees for a successful defense of the insurer's declaratory judgment action on the duty to defend. In Farmers, however, the declaratory judgment action was on the issue of coverage and the insurance company did not contest its duty to defend its insured. The court therefore concluded that the attorney's fees incurred in the declaratory judgment action were not supplemental to the defense of the insured and should not be awarded.
The attorney's fees incurred by the Church in this declaratory judgment action were at the insurer's request in the same sense as discussed in the dicta in Farmers. Even more clearly than in Farmers, the reimbursement provision here is directed at expenses incurred as a result of the insurer's agreement to defend the insured. The policy provides that Travelers will pay "reasonable expenses incurred by the Insured at The Travelers' request in assisting The Travelers in the investigation or defense of any claim or suit, including actual loss of earnings not to exceed $25 per day." The attorney's fees here were incurred by the Church in defense of a lawsuit in which Travelers engaged in an extensive investigation of the facts of the wrongful death complaints in an attempt to avoid a duty to defend. Under the foregoing provision requiring reimbursement of expenses incurred by the Church at the Travelers' request in assisting the Travelers in the investigation or defense of the claims, an award of attorney's fees is appropriate. Because the Church did not receive a judgment entitling it to an entirely free defense and the action also concerned issues of policy coverage, the fees should be limited to a *846 determination of those incurred in the successful portion of the Church's defense of the declaratory judgment action on the issue of the duty to defend.
Travelers argues that public policy should not require it to pay attorney's fees under this type of provision if it pays for the Church's defense[4] while simultaneously forcing its insured to incur attorney's fees in a lawsuit seeking an adjudication of the issue of the duty to defend. Travelers contends that an award of attorney's fees here will deter insurance companies from seeking declaratory relief. The simple answer is that insurance companies have the ability to write their insurance contracts to eliminate this risk. Public policy is not germane to the issue here. The only question is whether the contractual provision under consideration provides for attorney's fees under the circumstances of this case.
Our decision is not affected by the recent grant of reconsideration in Farmers. We are satisfied of the soundness of the reasoning in the dicta in Farmers and adopt it as our holding in this case.
The judgment with respect to the duty to defend and provide coverage for the Church is affirmed. The judgment declaring the pilot an "insured" is reversed. The judgment denying attorney's fees to the Church is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion. Having complied with RAP 18.1, the Church is entitled to reasonable attorney's fees on appeal pursuant to the expenses reimbursement provision in the *847 policy. On remand, the trial court should determine the amount of attorney's fees on appeal.
DURHAM, A.C.J., and JAMES, J., concur.
Reconsideration denied October 5, 1982.
NOTES
[1] The permission slip provides:
"____________________________ (child's name) has my permission to attend the _________________________ (type of event) planned by the North Seattle Alliance Church on _______________ (date). I, the parent or guardian understand that every precaution will be taken to insure the safety of my child, but will not hold the church or staff responsible if an accident should occur. I also give my permission for any emergency medical treatment needed.
___________________________________
Parent or Guardian"
[2] The court also concluded that Travelers had no duty to defend Wacker's estate because the wrongful death complaints did not allege that he entered into a contract to assume liability for bodily injury arising from the plane flight. This ruling has not been appealed.
[3] The trial court found that Wacker was not acting as an employee of the Church.
[4] Travelers asserts that it is defending the Church in the wrongful death actions under a reservation of rights. The Church disputes the insurer's claim that a free defense is being provided. The trial court was not asked to make findings on this question. We would reach the same conclusion regardless of whether Travelers is defending the Church because the attorney's fees would still be expenses arising out of the insurer's duty to defend.
| {
"pile_set_name": "FreeLaw"
} |
J-S21013-20
2020 PA Super 153
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL JAMES LUSTER, II :
:
Appellant : No. 953 WDA 2019
Appeal from the Judgment of Sentence Entered May 15, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004227-2018
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
OPINION BY LAZARUS, J.: FILED: JULY 06, 2020
Daniel James Luster, II, appeals from the judgment of sentence, entered
in the Court of Common Pleas of Allegheny County, following his conviction
for involuntary deviate sexual intercourse with a child (“IDSI”), 1 unlawful
contact with a minor,2 indecent assault of person less than 13 years of age,3
and endangering welfare of children.4 After careful review, we vacate Luster’s
judgment of sentence and remand for a new trial.
When L.R. was between 3 and 4 years old, in 2010 or 2011, she was
sexually abused by Luster, her uncle, while she was left alone with him at her
____________________________________________
1 18 Pa.C.S. § 3123(b).
2 18 Pa.C.S. § 6318(a)(1).
3 18 Pa.C.S. § 3126(a)(7).
4 18 Pa.C.S. § 4304(a)(1).
J-S21013-20
paternal grandmother’s house. N.T. Jury Trial, 2/20/19, at 71. L.R. described
four incidents of sexual assault. Id. at 77-81. L.R. first reported the incidents
to her paternal grandmother but did not remember her grandmother’s
response. Id. at 82-85.
In January of 2018, L.R.’s mother (“Mother”), confronted L.R. for
misbehaving in school. Id. at 142. L.R. grabbed a knife and attempted to
commit suicide. Id. at 156. Following L.R.’s suicide attempt, Mother beat
L.R. with a belt. Id. at 157. Shortly after, the police were called and L.R. was
taken to Southwood Hospital (“Southwood”). Id. at 89. During L.R.’s stay at
Southwood, L.R. disclosed that she had been sexually assaulted by Luster.
Id. at 85. The Allegheny Office of Children, Youth, and Families (“CYF”)
investigated the case. Id. at 76. L.R. was subject to a forensic interview at
the Advocacy Center at UPMC Children’s Hospital of Pittsburgh on February
14, 2018. Id. at 168.
On May 6, 2018, Luster was charged with IDSI, unlawful contact with a
minor, indecent assault of person less than 13 years of age, endangering
welfare of children, and corruption of minors.5 On June 18, 2018, an un-
recorded pretrial conference was held at which the parties discussed L.R.’s
forensic interview and the facts of this case. In February of 2019, a week
before trial, during plea negotiations, the Commonwealth provided oral notice
of its intention to present the video of the forensic interview at trial under the
____________________________________________
5 18 Pa.C.S. §6301(a)(1).
-2-
J-S21013-20
Tender Years Hearsay Act (“the Act”), 42 Pa.C.S. §5985.1(a). Id. at 9. During
jury selection, the Commonwealth gave oral notice a second time. Id. On
February 20, 2019, the day of trial, the Commonwealth provided formal
written notice. Id. at 14.
Following a three-day trial, a jury convicted Luster of all of the above-
stated offenses except for corruption of minors. On May 15, 2019, Luster was
sentenced to 200-400 months of incarceration for IDSI, plus five years’
probation on each count to run concurrent to one other and consecutive to the
200-400 months of incarceration. On May 23, 2019, Luster filed a post-
sentence motion for a new trial on the basis that the verdict was against the
weight of the evidence; the trial court denied that motion on May 29, 2019.
Luster timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. He presents the
following issues for our review:
1. Did the trial court err by admitting a forensic interview under
the Tender Years Hearsay Act where the Commonwealth failed to
provide formal notice of its intent to introduce the video until the
morning of the trial?
2. Whether the trial court abused its discretion by permitting the
Commonwealth’s voir dire question on the legal weight given to a
complainant’s testimony due to its misleading nature and
prejudicial effect on empaneling a fair and impartial jury?
3. Whether the trial court abused its discretion by precluding
[Luster] from introducing impeachment evidence regarding
[Mother’s] denials of using physical discipline against the
complainant?
Appellant’s Brief, at 7.
-3-
J-S21013-20
In his first issue, Luster claims that the trial court improperly admitted
L.R.’s. hearsay where the Commonwealth failed to provide adequate notice
under the Act of its intention to introduce such evidence at trial.
Our standard of review for evidentiary rulings, including the admission
of hearsay, is abuse of discretion. Commonwealth v. Walter, 93 A.3d 442,
449 (Pa. 2014). Issues of statutory interpretation are questions of law; our
standard of review is de novo and our scope of review is plenary. Id.
The Act allows for out-of-court statements to be admitted at trial if: (1)
the statement was made by a child twelve years or younger; (2) the content
and circumstances of the statement provide sufficient indicia of reliability; and
(3) one of the enumerated offenses is charged. 42 Pa.C.S. §5985.1(a). The
Act also includes a notice requirement that states:
A statement otherwise admissible under subsection (a) shall not
be received into evidence unless the proponent of the statement
notifies the adverse party of the proponent’s intention to offer the
statement and the particulars of the statement sufficiently in
advance of the proceeding at which the proponent intends
to offer the statement into evidence to provide the adverse
party with a fair opportunity to prepare to meet the
statement.
42 Pa.C.S. § 5985.1(b) (emphasis added).
In Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. 1998), we
addressed the Act’s notice requirement in a case of first impression. There,
Crossley was charged with sexually abusing a 3½-year-old boy. On the day
of trial, the Commonwealth attempted to offer into evidence a videotaped
interview between the victim and a children and youth services worker.
-4-
J-S21013-20
Defense counsel objected on the basis that the Commonwealth had failed to
give the defendant notice under the Act of its intention to introduce the minor’s
statements given until the day of trial. On appeal, this Court rejected the
Commonwealth’s argument that providing the statements during “the regular
course of discovery” constituted sufficient notice, as the Act specifically
requires that the proponent’s notice must alert the opposing party of “an
intention to use a specific document in a particular manner.” Id. at 1028.
The Court further found that, since the language of the statute is clear that
such evidence shall not be admitted absent proper notice, a prejudice analysis
requiring the defendant to show how he would have proceeded differently if
notice had been properly given is inappropriate. Id. at 1028 n.2.
In the matter sub judice, the Commonwealth failed to give formal
written notice until the day of trial. Although the Act does not require written
notice, it does require that the notice be given sufficiently in advance of the
proceeding to provide the adverse party with a fair opportunity to prepare to
meet the statement. 42 Pa.C.S. §5985.1(b). The Commonwealth claims it
gave Luster oral notice of its intention to offer the forensic video during plea
negotiations, however, those negotiations occurred a mere one week before
trial. N.T. Jury Trial, 2/20/19, at 9. We conclude that one week’s notice did
not provide Luster a “fair opportunity to prepare to meet the statement,” 42
Pa.C.S. § 5985.1(b), especially where the Commonwealth was in possession
of the forensic interview for nearly one year prior to the date of trial and had
-5-
J-S21013-20
ample opportunity to provide reasonable notice to Luster.6 Indeed, as a result
of the Commonwealth’s late notice, it was necessary to redact irrelevant
information from the video in the midst of trial with the jury already
impaneled. When the trial court inquired as to why the redactions had not
been done earlier, Luster’s counsel replied: “That is one of the reasons I
objected yesterday, the Tender Years exception playing the video. Because I
could have obviously made this request in writing to [Y]our Honor and brought
it to [Y]our Honor’s attention sooner.” N.T. Jury Trial, 2/21/19, at 10. In
response, the trial judge stated that, had she known such redactions were
necessary, she “might have potentially changed [her] ruling on [admitting the
evidence].” Id. However, because by that point L.R. had been extensively
cross-examined on the video, the trial court ruled that “the video does have
to come in.” Id.
This case involves a delayed report of sexual abuse from a young child.
The Commonwealth relied exclusively on L.R.’s testimony, and the forensic
interview video substantially corroborated her in-court testimony. Luster was
entitled to reasonable notice to allow himself to prepare to defend against this
crucial evidence. As this Court noted in Crossley,
[The Act] recognizes that child witnesses pose difficult problems
for the parties, the court and the jury. A child may not be able to
____________________________________________
6 The affidavit of probable cause states that the affiants, Detectives Corinne
L. Orchowski and Richard Keebler, were made aware of Luster’s offenses on
February 27, 2018, as a result of L.R.’s forensic interview. See Affidavit of
Probable Cause, 2/28/18, at ¶¶ 1-2.
-6-
J-S21013-20
tell his story in court because of emotional trauma associated with
the crime. The law, therefore, makes a special accommodation to
enable the prosecution to prove its case in such circumstances.
This accommodation in turn poses unique challenges for the
defendant who must defend against a charge where the victim
himself does not tell the jury what happened, but others to whom
the victim talked become his surrogate in court. In permitting
such hearsay, the legislature has determined that the defendant
is entitled to a type of notice that is direct and specific in order to
provide a meaningful opportunity to challenge the hearsay. For
example, the defendant may wish to offer psychological evidence
about the failure of children of certain ages to distinguish truth
from fantasy or the defendant may have specific evidence relating
to the victim’s reliability. It is for these reasons that the
notice provisions are strict and must be strictly observed.
Crossley, 711 A.2d at 1028 (emphasis added).
The mandate of the Act remains clear and unambiguous. While, here,
the minor victim testified at trial, the Commonwealth’s eleventh-hour notice
failed to comport with the Act’s strict notice requirements for the introduction
of the forensic interview hearsay evidence, and we are therefore constrained
to vacate Luster’s convictions and remand the case for a new trial.7
____________________________________________
7 Because we have decided that the forensic interview hearsay evidence was
erroneously admitted for lack of proper notice and vacate and remand for a
new trial, we need not consider Luster’s remaining claims. However, in the
interest of clarifying the issues in the event of a retrial, we note the following
with respect to Luster’s second and third appellate claims. First, with regard
to his claim that the trial court abused its discretion by permitting the
Commonwealth to ask an allegedly improper voir dire question on the legal
weight to be given to a complainant’s testimony, we note that while the
Commonwealth’s voir dire question is not a verbatim restatement of 18
Pa.C.S.A. § 3106, it presented a fair and accurate summary of the applicable
law. In fact, the Commonwealth’s wording was arguably favorable to Luster,
as it reiterated to the jury that the Commonwealth bears the burden of proof
beyond a reasonable doubt. Moreover, any potential error was cured when
the trial court properly instructed the jury. Commonwealth v. Smith, 995
-7-
J-S21013-20
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020
____________________________________________
A.2d 1143, 1163 (Pa. 2010) (incorrect explanation of reasonable doubt
provided by Commonwealth in cured by trial court instruction). Accordingly,
Luster failed to demonstrate that the question was in error or that he was
prejudiced by its inclusion in the voir dire proceedings.
Finally, Luster’s claim that the trial court abused its discretion by precluding
him from introducing certain impeachment evidence is also meritless. Luster
sought to introduce the testimony of a social worker to testify that Mother had
admitted to routinely using physical discipline against L.R., contrary to
Mother’s testimony. The trial court properly concluded that the issue of
Mother’s disciplinary habits was a collateral matter that did not bear upon the
main issue of whether Luster sexually assaulted L.R. See Commonwealth
v. Johnson, 638 A.2d 940 (Pa. 1994) (witness may not be cross-examined
on collateral matter bearing no relationship to matter on trial).
-8-
| {
"pile_set_name": "FreeLaw"
} |
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1322
DARREN F. STARR,
Plaintiff, Appellant,
v.
DENIS DUBE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Darren Starr on brief pro se.
Glenn A. Perlow, Assistant Attorney General, and Kelly A.
Ayotte, Attorney General, on brief for appellees.
June 24, 2009
Per Curiam. In his 42 U.S.C. § 1983 suit, pro se New
Hampshire state inmate Darren Starr sued certain prison employees
or officials, alleging that a false disciplinary charge was filed
against him and that a destructive search was made of his cell in
retaliation for his exercise of First Amendment rights. In an
Order dated December 7, 2007, the district court granted
defendants' motion for summary judgment on the retaliation claim
based on the disciplinary charge. Subsequently, a trial was held
on the cell search retaliation claim, and, on February 6, 2008, the
jury returned a special verdict against Starr. On February 7,
2008, the district court issued judgment in defendants' favor, and
Starr filed this appeal.
On appeal, Starr objects to the district court's summary
judgment decision and to certain of its trial-related rulings. We
affirm the district court's judgment in favor of the defendants for
the following reasons.
1. Starr objects to the district court's pretrial ruling
denying his request for a subpoena to obtain the testimony of a
certain corrections officer at trial. He also argues that the
district court erroneously instructed the jury as to his burden of
proof on one element of his retaliation claim. After careful
review of the record and the parties' appellate contentions,
however, we conclude that the district court did not abuse its
discretion in denying Starr's motion for a subpoena, or err in the
-2-
jury instruction it gave. See McDonald v. Hall, 610 F.2d 16, 18
(1st Cir. 1979) ("Plaintiff must prove that he would not have been
transferred 'but for' the [retaliatory] reason.").
2. Starr contends that the district court's summary
judgment decision was erroneous. We review that decision de novo,
evaluating whether there is any genuine issue as to a material fact
and whether defendants were entitled to judgment as a matter of
law. Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir.
2009).
The disciplinary charge against Starr was dismissed about
a week after it was filed. At the disciplinary hearing, the
hearing officer agreed with Starr's argument that the investigation
of the charge had been improper. Starr received no discipline or
other sanction due to the filing of the disciplinary charge.
Based on the above undisputed facts, the district court
held, as a matter of law, that the adverse act alleged was "de
minimis" and thus did not give rise to a cognizable retaliation
claim under § 1983. The court relied on the reasoning in Morris v.
Powell, 449 F.3d 682 (5th Cir.), cert. denied, 549 U.S. 1038
(2006), where the circuit court adopted the standard used in other
circuits for evaluating the sufficiency of a particular adverse act
alleged by a prisoner raising a retaliation claim. Under that
standard, an adverse act is not de minimis if it "would chill or
silence a person of ordinary firmness from future First Amendment
-3-
activities." Applying the standard, the Fifth Circuit found that
certain adverse acts would be de minimis--acts that cause an inmate
only a "few days of discomfort," impose "a [single] minor
sanction," or impose an otherwise constitutional restriction on the
inmate. 449 F.3d at 685-86 (mentioning the facts in that case and
prior circuit cases). As the district court pointed out, filing a
disciplinary charge that is dismissed constitutes an adverse act
that is "less substantial than the least substantial de minimis act
identified by the Morris court."
On appeal, Starr accepts that his retaliation claim must
be premised on an adverse act of a kind that would deter persons of
"ordinary firmness" from exercising their constitutional rights in
the future. He argues that the filing of the disciplinary charge
against him met that standard because it exposed him to maximum
penalties that included punitive segregation and a loss of good
time credits. There is case law in his favor. Brown v. Crowley
("Brown"), 312 F.3d 782, 789 (6th Cir. 2002) (majority decision),
cert. denied, 540 U.S. 823 (2003) (a reasonable jury could find
that filing a retaliatory charge exposing an inmate to a "risk of
significant sanctions" could deter persons of "ordinary firmness"
from exercising their rights); Zarska v. Higgins, 171 Fed. Appx.
255, 259-60 (10th Cir. 2006) (unpublished decision) (filing
retaliatory disciplinary proceedings "would chill a person of
ordinary firmness" from future exercise of his or her rights)
-4-
(citation omitted); cf. Dixon v. Brown, 38 F.3d 379, 379-80 (8th
Cir. 1994) (a prisoner who has presented evidence that a "false"
disciplinary charge was filed for retaliatory reasons does not have
to "show a separate, independent injury").
We do not find the reasoning in the above cases to be
persuasive on the facts of this case. As a prison policy directive
contained in the record indicates, Starr was entitled to several
opportunities to present his version of the facts to neutral
decisionmakers. Indeed, at his disciplinary hearing, he
successfully obtained dismissal of the charge against him after
pointing out the irregularity in the prison's investigation of the
charge. Starr has not contended that it would be futile for
inmates at his prison to try to defend themselves against
retaliatory disciplinary charges.
The procedures in the prison policy directive serve to
protect inmates from the threat of punishment that is posed by a
retaliatory disciplinary charge. On the facts here, we cannot say
that a reasonable fact-finder could conclude that inmates of
"ordinary firmness" would be deterred from continuing to exercise
their constitutional rights merely because of the filing of a
disciplinary charge carrying potentially severe sanctions. See
Pittman v. Tucker, 213 Fed. Appx. 867, 871-72 (11th Cir. 2007)
(unpublished per curiam) (the court "could not conclude that a
person of ordinary firmness would be deterred from exercising his
-5-
First Amendment rights" where inmates could defend themselves
against a charge before being disciplined and there was no evidence
or claim that it would be futile to attempt a defense); accord
Brown, supra, 321 F.3d at 801-02 (dissenting opinion by Rosen,
D.J., sitting by designation). See also Morris, supra; Gill v.
Tuttle, 93 Fed. Appx. 301, 303-04 (2d Cir. 2004) (unpublished) (to
survive a summary judgment motion, an inmate must allege an adverse
action that imposes a "substantial" impact on an inmate) (by
implication); Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)
(a "single [allegedly unjustified] retaliatory charge that is later
dismissed is insufficient to serve as the basis of a § 1983
action").
Affirmed.
-6-
| {
"pile_set_name": "FreeLaw"
} |
395 F.2d 500
Clifford C. WEISS and Velda L. Weiss, Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 9802.
United States Court of Appeals Tenth Circuit.
May 17, 1968.
Clifford E. Jordan, Santa Barbara, Cal., for appellants.
Albert J. Beveridge, III, Atty., Dept. of Justice, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Elmer J. Kelsey, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.
Before MURRAH, Chief Judge, BREITENSTEIN and HILL, Circuit Judges.
HILL, Circuit Judge.
1
Appellants initiated this action by petition in the Tax Court for a redetermination of a deficiency set by the Commissioner on their joint tax return for the tax year of 1962. The deficiency added $47,121.25 to the income reported by appellants on their return. The Tax Court denied appellants' petition and they appeal from this decision.
2
Appellants are the sole stockholders of Intermountain Electric Company, Inc., an electrical contracting firm which was incorporated in 1956. It uses an accrual method of accounting and filed corporate income tax returns through October 31, 1960, at which time an election was made to come within Subchapter S of the Internal Revenue Code of 1954, §§ 1371-1378, 1954, I.R.C. Since that time all income tax returns have been filed pursuant to the provisions of Subchapter S. Intermountain reported an opening and closing inventory of $334.75 for the year ending October 31, 1958, and for each succeeding year through October 31, 1961. During this time, Intermountain had in fact been accumulating inventory due to the return of materials purchased and charged to but not used in prior contracts. On March 31, 1962, a physical inventory was taken by a firm of accountants and the value of Intermountain's inventory was set at $47,456.00. Intermountain applied to change its fiscal period in the year of 1962, to begin April 1 and run to March 31. This request for a change was denied. For the year of 1962, Intermountain listed its opening inventory as $47,456.00 and closing inventory as $47,672.10. The Commissioner, in determining appellants' deficiency for 1962, reduced Intermountain's opening inventory for November 1, 1961, from $47,456.00 to $334.75, the amount of the closing inventory reported for October 31, 1961, and thus increased its taxable income for the year by $41,121.25, and included that amount in the income of the appellants for the calendar year 1962. Intermountain did not request or obtain permission to change its method of accounting as required by Section 446 of the Internal Revenue Code of 1954.
3
Appellants apparently do not dispute the general applicability of Section 481 of the Internal Revenue Code. This section, first enacted into the Code in 1954, provides that: "(a) * * * In computing the taxpayer's taxable income for any taxable year * * * (1) if such computation is under a method of accounting different from the method under which the taxpayer's taxable income for the preceding taxable year was computed, then
4
"(2) there shall be taken into account those adjustments which are determined to be necessary solely by reason of the change in order to prevent amounts from being duplicated or omitted, except there shall not be taken into account any adjustment in respect of any taxable year to which this section does not apply unless the adjustment is attributable to a change in the method of accounting initiated by the taxpayer."
5
Intermountain's change of method in valuing its inventory from a nominal value to an actual value is clearly a change in a method of accounting which requires an adjustment to prevent amounts from being duplicated or omitted. As stated by the Tax Court, to allow Intermountain to use the actual value as its opening inventory for the 1962 fiscal year would in effect allow it amounts for deduction which had previously been deducted. It is clear that section 481(a) applies and that the Commissioner was correct in assessing appellants with a deficiency for their reported 1962 income.1
6
Appellants, however, assert that such an application is incorrect in the present situation for two reasons, neither of which has any merit. Appellants first contend that Section 6501, 1954, I.R.C.,2 bars collection of tax for that portion of the inventory accumulated in years prior to the fiscal year ending October 31, 1961. Section 6501 bars the assessment of any tax after three years following the filing of the return. The assessment in the instant case was filed by the Commissioner in September of 1965, clearly within the three year limitation for the assessment of the tax upon the 1962 income tax return. The simple answer to appellants' contention is that the only year in question is the 1962 income year. There is no reopening or reassessment of taxes upon years preceding 1962; years which would be closed to reopening by 6501. Admittedly the accumulation of materials, unreflected in inventory value, occurred in years prior to 1962. For purposes of taxation, however, the change in method of accounting in 1962, precipitated into the 1962 tax report an adjustment to prevent a future duplication of deduction when the accumulated materials were used in future contracts. This adjustment is required by § 481 and although indirectly related to previous years it is erroneous for appellants to imply that the income is from years prior to 1962. The income applies solely to the year of the change in method of accounting, 1962, and therefore § 6501 is no bar to the assessment placed upon appellants' 1962 tax return. The same argument was advanced and rejected in Graff Chevrolet Co. v. Campbell, 5 Cir., 343 F.2d 568. Appellants cite the Graff case but do not attempt to distinguish it or point out any error in the court's reasoning in that case.
7
The sole authority for appellants' assertion that 6501 bars the assessment in the instant case are three cases decided before the enactment of § 481. It was stated by this court in United States v. Lindner, 10 Cir., 307 F.2d 262, at 264: "The rule established by the decided cases under the 1939 statute and these regulations was that if the Commissioner required a change in accounting method by asserting a deficiency, he could not include in the year of change income which should have been reported in other years, but that if the taxpayer voluntarily sought permission to change his accounting method, the Commissioner had authority to insist upon appropriate adjustments necessary to prevent some income from escaping taxation because of the change." Cases cited by appellants were all cases where the Commissioner had required a change in accounting method. As such they would not be authority for denying the assessment in the instant case even if § 481 had not been enacted as the change in accounting method in the instant case was instituted by appellants.
8
Appellants' second contention is that as Subchapter S shareholders they are not subject to tax liability for inventory income which is attributable to years during which the corporation was a taxable corporation. Once again appellants' argument is based upon a false assumption and has absolutely no merit. Appellants repeatedly speak as though the taxes imposed were from years prior to 1962. As pointed out above, this simply is not the case as the taxes and the assessment are required by § 481 for the year of the change and relate solely to the year when the assessment was made, 1962. For this fiscal year Intermountain had elected to be taxed as a Subchapter S corporation.
9
The philosophy behind the Subchapter S corporation status is that the corporation does not pay income tax but instead the income is passed through to the shareholders preventing a double taxation. Since the corporation is responsible for the deficiency in income as determined by the Commissioner the deficiency also effects the Subchapter S shareholders. Section 481 does not expressly state, of course, that it applies to Subchapter S shareholders but there is no doubt that it does. Indeed, it is stated in Section 1.481-2(c) (5) (ii) of the Income Tax Regulations that: "In the case of a change in method of accounting by an electing small business corporation under subchapter S, chapter 1 of the Code, the adjustments required by section 481 shall be made with respect to the taxable income of such electing corporation in the year of the change, but the limitations on tax under section 481(b) shall apply to the individual shareholders."
10
Subsection (b) of section 481 provides for a limitation on tax if adjustments are substantial. Subsection 481(b) (1) provides that where the method of accounting from which the change was made was used for the two taxable years preceding the year of change and the increase in taxable income exceeds $3,000 then the tax shall not be greater than the increase which would result if one-third of the required increase of taxable income were included in taxable income for the year of the change and one-third of such increase were included for each of the two preceding taxable years. This subsection was applied in the instant case by the Commissioner.
11
Subsection 481(b) (2) provides that where the taxpayer can establish his taxable income under the new method of accounting for one or more taxable years consecutively preceding the taxable year of change the taxpayer can limit his taxes to those which would have accrued had the adjustments been allocated to the taxable year or years to which they were properly allocable under the new method of accounting. Appellants made no showing as to what the taxable income of Intermountain would have been had the new method of accounting been applied to the years preceding the year in which the change was made, thus 481(b) (2) is not applicable. Nonetheless appellants suggest that the regulations under 481 (b) (2) require that the shareholders of a Subchapter S corporation may not be taxed for income allocable to those years when the Subchapter S election was not made. This argument is totally wrong. First, as has been repeatedly stated, the increase in tax with which we are concerned occurs solely in the year of adjustment, 1962. Second, section 481(b) (2) does not in any respect apply to this case because appellants did not satisfy the burden of showing what the taxable income of Intermountain would have been under the new accounting method. Third, the language to which appellants refer allows a Subchapter S shareholder to take advantage of the limitations set out in 481(b) (2) even though he was not a shareholder and the corporation was not an electing small business corporation for all the taxable years effected by the computation thereunder. This language in no way stands for the proposition suggested by appellants, rather it is intended to benefit shareholders by allowing them to use the method set out in 481(b) (2) to limit their tax.
12
Appellants' remaining arguments set out theoretical bases for apportioning the increase in inventory to the years prior to 1962. Since appellants failed to meet requirements of 481(b) (2) there is no necessity for apportionment.3 The Commissioner correctly applied 481(b) (1) which does not require any allocation of the increased inventory. The Commissioner was clearly right in assessing the deficiency and the Tax Court was clearly right in denying appellants' petition to have this deficiency assessment reversed. Therefore, the decision of the Tax Court is affirmed.
Notes:
1
The Commissioner applied 481(b) (1) in computing appellants' tax deficiency and this was affirmed in the Tax Court with final decision entered July 31, 1967, pursuant to Rule 50 in the amounts of $642.83 and $23,620.51 for the taxable years 1961 and 1962, respectively
2
Section 6501, 1954. I.R.C., states:
"(a) General rule — Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period."
3
Additionally it is doubtful whether the theoretical apportionments suggested by appellants would be an acceptable method of allocation of income under 481(b) (2)
| {
"pile_set_name": "FreeLaw"
} |
1 Akron Bar Association v. Williams.
2 [Cite as Akron Bar Assn. v. Williams (1996),____Ohio St.3d____.]
3 Attorneys at law -- Misconduct -- Public reprimand -- Withdrawing
4 from employment without taking reasonable steps to avoid
5 foreseeable prejudice to client and delivering all papers to
6 which client is entitled -- Neglect of an entrusted legal matter -
7 - Failing in a timely manner to respond to a court order, pay
8 the filing fee, and file the required notice of appeal and
9 appellant’s brief.
10 (No. 96-1468 -- Submitted September 10, 1996 -- Decided December
11 18, 1996.)
12 On Certified Report by the Board of Commissioners on Grievances
13 and Discipline of the Supreme Court, No. 95-76.
14 The Akron Bar Association (“relator”) filed a complaint on October
15 10, 1995, charging, inter alia, that Brian J. Williams of Akron, Ohio,
16 Attorney Registration No. 0020645 (“respondent”), had violated DR 2-
17 110(A)(2) (withdrawing from employment without taking reasonable steps
18 to avoid foreseeable prejudice to a client and delivering all papers to which
19 the client is entitled) and 6-101(A)(3) (neglect of a legal matter entrusted).
1 After respondent filed an answer to the complaint, relator and
2 respondent entered into a stipulation in which respondent agreed that he had
3 violated the above Disciplinary Rules. The matter was considered by a
4 panel of the Board of Commissioners on Grievances and Discipline of the
5 Supreme Court (“board”) upon the pleadings and agreed stipulations.
6 According to the stipulated facts, respondent filed a complaint in
7 April 1992 in the Ohio Court of Claims on behalf of Dethrow Jackson, but
8 did not pay the filing fee as required. In June 1992, the Court of Claims
9 dismissed the action for failure to pay the fee. After the filing fee was paid
10 and the case reinstated, respondent failed to file a Statement of Existence of
11 Connected Actions as had been ordered by the court in April 1992. Hence
12 the court again dismissed the case in April 1993. Respondent did not appeal
13 this dismissal, but filed a motion for reconsideration. When the court
14 denied the motion to reconsider, respondent filed an appeal from that
15 decision to the court of appeals.
16 Seven weeks after the appeal was filed, the court of appeals notified
17 respondent that although the record was filed, respondent had not filed his
18 Brief and Assignments of Error, nor had he requested an extension.
1 Respondent then requested an extension, which was granted. On November
2 9, 1993, the court of appeals dismissed the appeal for the reason that the
3 appeal was not timely filed. Respondent then refused to deliver Jackson’s
4 file to him until Jackson paid the accumulated court costs.
5 The panel recommended that the respondent be publicly reprimanded.
6 The board adopted the findings and the recommendation of the panel.
7 _________________________
8 R. David Briggs and James L. Wagner, for relator.
9 Brian J. Williams, pro se.
10 ________________________
11 Per Curiam. The respondent attorney has admitted to neglect of duty
12 owed to his client by failing in a timely manner to respond to a court order,
13 pay the filing fee, and file the required notice of appeal and appellant’s
14 brief. We adopt the findings and recommendation of the board.
15 Respondent is hereby publicly reprimanded. Costs are taxed to respondent.
16 Judgment accordingly.
17 MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK
18 and STRATTON, JJ., concur.
1
| {
"pile_set_name": "FreeLaw"
} |
999 F.2d 537
U.S.v.Galu
NO. 93-1037
United States Court of Appeals,Second Circuit.
June 22, 1993
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
293 Pa. Superior Ct. 260 (1981)
438 A.2d 984
COMMONWEALTH of Pennsylvania,
v.
Juan MARTINEZ, Appellant.
Superior Court of Pennsylvania.
Submitted December 5, 1980.
Filed December 18, 1981.
*261 Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before HESTER, SHERTZ and WIEAND, JJ.
SHERTZ, Judge:
Appellant, Juan Martinez, was convicted of Criminal Conspiracy,[1] Loitering and Prowling at Night[2] and Attempted Burglary.[3] On March 18, 1975, Appellant was sentenced to concurrent terms of probation of three years on Conspiracy Indictment No. 1368, one year on Loitering Indictment No. 1369 and five years on Attempted Burglary Indictment No. 1370. Appellant did not appeal this sentence.
On June 16, 1977, Appellant appeared before the lower court for a violation of probation hearing. The court terminated Appellant's probation on Bill No. 1369 and revoked his probation on Bill Nos. 1368 and 1370. Concurrent terms of three years probation, on Bill 1368 and 1370, were imposed. Appellant did not appeal this sentence.
On July 17, 1979, Appellant again appeared for a violation of probation hearing. Appellant's probation was revoked and consecutive terms of imprisonment of one to ten years on Bill Nos. 1368 and 1370 were imposed. This appeal followed.
In this appeal from his sentence for probation revocation, Appellant argues that the legality of his sentence is properly before this court either because his original sentence for his convictions of attempted burglary and criminal conspiracy *262 was illegal and this issue cannot be waived or because trial counsel was ineffective for failing to object to Appellant's improper sentence for his conviction of both criminal conspiracy and attempted burglary.
Although Appellant failed to raise the issue of the illegality of sentence on direct appeal from his original sentence,[4] we will consider it at this time because it is not a waivable issue. Commonwealth v. Turner, 290 Pa.Super.Ct. 428, 434 A.2d 827 (1981); Commonwealth v. Welch, 291 Pa.Super.Ct. 1, 435 A.2d 189 (1981).
Instantly, Appellant was convicted and sentenced for criminal conspiracy and attempted burglary, a result clearly illegal under 18 Pa.Cons.Stat.Ann. § 906 (Purdon 1976).[5]See Commonwealth v. Jackson, 280 Pa.Super.Ct. 522, 421 A.2d 845 (1980); Turner, supra. Section 906 prohibits a conviction for more than one inchoate crime when the conduct engaged in is designed to end in the commission of only one crime. Here, Appellant's criminal conspiracy to commit burglary and his subsequent attempted burglary clearly constituted "conduct designed to culminate in the commission of the same crime" burglary. Section 906, supra; Turner, supra. Accordingly, Appellant should not have been sentenced for both attempt and conspiracy, but only for one or the other. We shall therefore vacate the judgments of sentence for attempt and conspiracy and remand the case to the lower court so that it may resentence Appellant for either attempt or conspiracy.[6]Jackson, 280 Pa.Super.Ct. at 524, 421 A.2d at 846.
*263 Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.
NOTES
[1] 18 Pa.Cons.Stat.Ann. § 903 ((Purdon 1976).
[2] 18 Pa.Cons.Stat.Ann. § 5506 (Purdon 1976).
[3] 18 Pa.Cons.Stat.Ann. § 901 (Purdon 1976).
[4] 42 Pa.Cons.Stat.Ann. § 9781(a) (Purdon 1981), formerly 18 Pa. Cons.Stat.Ann. § 1386 (Purdon 1976), states, in pertinent part: "The defendant or the Commonwealth may appeal as of right the legality of the sentence." Act of December 30, 1974, P.L. 1052, No. 345, § 1.
[5] Section 906 provides: "Multiple Convictions Barred. A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or culminate in the commission of the same crime." Act of December 6, 1972, P.L. 1482, No. 334, § 1.
[6] Appellant was sentenced consecutively to terms of imprisonment of one to ten years on attempted burglary and criminal conspiracy, both felonies of the second degree. 18 Pa.Cons.Stat.Ann. §§ 905, 3502(a). Although we have the option of either remanding for resentencing, or amending the sentence directly Commonwealth v. Eberts, 282 Pa.Super.Ct. 354, 422 A.2d 1154 (1980), since the offenses are of the same degree, we will remand to the lower court to resentence Appellant for either attempt or conspiracy.
| {
"pile_set_name": "FreeLaw"
} |
357 Mass. 468 (1970)
258 N.E.2d 736
LOUISE M. JORDEN
vs.
MILDRED BALL & others.
Supreme Judicial Court of Massachusetts, Suffolk.
February 6, 1970.
May 7, 1970.
Present: WILKINS, C.J., SPALDING, KIRK, SPIEGEL, & REARDON, JJ.
Richard L. Hull & Francis J. Vita, for the defendants, submitted a brief.
Edmund M. Hurley for the plaintiff.
SPALDING, J.
This litigation arose out of a husband's conveyance of solely owned property to the defendant Ball after the entry of a decree in the wife's favor under G.L.c. 209, § 32, but before she filed a libel for divorce. The wife (plaintiff) brought this suit on November 29, 1967, to set aside the conveyance and have title to the property vested in her. Subsequently she brought a libel for divorce, and a decree (not appealed from) was entered granting the divorce and awarding the property to the plaintiff. From a decree in this suit setting aside the conveyance, and ordering the property conveyed to the plaintiff, the defendants appealed. The dispositive issue is whether a person in the plaintiff's position is a "creditor" within the meaning of the fraudulent conveyance act, G.L.c. 109A, §§ 1-13.
There were findings of the following facts. The plaintiff and her husband were married October 18, 1933. In 1946 the husband purchased the property in question (a parcel of real estate in Revere), taking title in his name. Sometime in 1959, the husband left the plaintiff and moved to Florida. There was evidence that he granted the plaintiff permission to remain in the house rent free until sometime in 1966. In March, 1967, the plaintiff brought a petition for separate support which resulted on October 31, 1967, in a decree declaring that the plaintiff was living apart from her husband for justifiable cause. On June 5, 1967, in Florida, the husband appointed the defendant Richard L. Hull, a lawyer practicing in Massachusetts, as his attorney, to "execute, acknowledge and cause to be recorded any and all deeds or mortgages or contracts of sale which may be *470 necessary for me or desirable for me to execute. And to receive payment from same in my behalf" (emphasis supplied). Mr. Hull, as attorney-in-fact, on November 17, 1967, conveyed the property in dispute to his secretary, the defendant Ball. It is undisputed that the defendant Ball was acting as a straw for Mr. Hull. There was no actual consideration for this conveyance. Mr. Hull, however, claimed that the conveyance constituted payment to him for over one thousand hours of legal services rendered to the husband. The judge found this testimony to be false. On April 29, 1968, the plaintiff was granted a decree nisi of divorce, which included a provision that the property at issue be conveyed to her.
The defendants argue in substance that there was no jurisdiction in equity over the subject matter of this suit, because the plaintiff showed no claim against the defendants or interest in the property at the time of the conveyance. We disagree.
The uniform fraudulent conveyance act confers jurisdiction to set aside conveyances made with actual intent "to hinder, delay, or defraud either present or future creditors...." G.L.c. 109A, § 7. The act is remedial. It provides a method by which the frustration of claims by a conveyance may be avoided, but it does not create new claims. To benefit from the rights it creates, a person must qualify as a "creditor," defined in the act as "a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent." As we stated in Blumenthal v. Blumenthal, 303 Mass. 275, 278, "The remedy is incidental to the claim. If the claim is not established, then the whole proceedings fail, and the bill must be dismissed."
The determinative question is whether the plaintiff was a "creditor" within the meaning of c. 109A because at the time of this suit she had "any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent" (emphasis supplied), which it could reasonably be said the conveyance was intended to frustrate. The *471 plaintiff, despite allegations to the contrary in her bill, did not establish any interest in the property in her own right at that time. Nor did she have any contractual claim against her husband, the sole cognizable ground in this Commonwealth for a wife's action at law against a husband. G.L.c. 209, §§ 2, 6, as amended by St. 1963, c. 765, §§ 1 and 2. While equity recognizes exceptions to this disability (see Gahm v. Gahm, 243 Mass. 374; Giles v. Giles, 279 Mass. 284), it is clear that none of them is here applicable, nor is it so contended.
The plaintiff, however, at the times both of the conveyance and of this suit, had a right as a wife to support and maintenance by her husband. G.L.c. 209, § 32. The disability of a wife to sue a husband, with the exceptions noted above, does not relieve a husband of this duty, or prevent a court from enforcing that duty at the behest of the wife. French v. McAnarney, 290 Mass. 544. Cause for divorce, subsequently sought and granted on the grounds of cruel and abusive treatment, also existed at those times. There thus existed in the plaintiff a claim, as yet unperfected, to her husband's support. There also existed a possible claim to the husband's assets pursuant to a divorce decree, the cause for which had already occurred. The question is whether the unperfected and contingent status of these claims disqualifies the plaintiff as a creditor under c. 109A. But the definition of a creditor in c. 109A explicitly includes claims that are "unmatured" or "contingent." We are of opinion that this language includes as "creditor" a woman in the plaintiff's circumstances whose claim, although not as yet reduced to a legal obligation, merely awaits some further step on her part which, as in the present circumstances, was likely to occur. In view of the lengthy estrangement and separation decree it was not unlikely that the plaintiff might seek a divorce, which in fact she did two weeks after commencing this suit. Thus, apart from c. 109A, she had an independent basis for bringing proceedings against her husband, and she could invoke the remedy provided in c. 109A in aid of that right.
*472 We recognize that there are cases holding that a wife is a "creditor" who may set aside a husband's prior fraudulent conveyance only after a support or alimony decree for money has been entered. See Willard v. Briggs, 161 Mass. 58, 59; Shepherd v. Shepherd, 196 Mass. 179; Doane v. Doane, 238 Mass. 106, 111-112. The statutes under which they arose, e.g. St. 13 Eliz. c. 5, and Pub. Sts. c. 151, § 2, cl. 11, did not define "creditor" as broadly or as explicitly as the present c. 109A. Hence, these cases are not controlling in a situation arising under c. 109A. Nor is Blumenthal v. Blumenthal, 303 Mass. 275, to the contrary. In that case a wife who had been awarded a judgment for damages for a husband's breach of a separation agreement in New York was held not to be a "creditor" despite the literal applicability of "creditor" as defined in c. 109A. We there reasoned that the broad definition of creditor did not remove the then existing disability of a wife to enforce a contract against a husband. Since her claim was thus not legally cognizable a situation materially different from the present she was not a "creditor" under c. 109A.
We decide only that a woman adjudged to be living apart from her husband for justifiable cause, where divorce proceedings, as here, were imminent, qualifies as a "creditor" under c. 109A.
Decree affirmed with costs of appeal.
| {
"pile_set_name": "FreeLaw"
} |
37 F.3d 630
Tassiov.Soper**
NO. 94-10459
United States Court of Appeals,Fifth Circuit.
Sept 21, 1994
1
Appeal From: N.D.Tex.
2
AFFIRMED.
**
Conference Calendar
| {
"pile_set_name": "FreeLaw"
} |
294 So.2d 894 (1974)
CANEY HUNTING CLUB, INC., Plaintiff-Appellant,
v.
A. J. TOLBERT et al., Defendants-Appellees.
No. 12289.
Court of Appeal of Louisiana, Second Circuit.
April 23, 1974.
Rehearing Denied May 28, 1974.
Shotwell, Brown & Sperry by Burt W. Sperry and L. Michael Ashbrook, Monroe, for plaintiff-appellant.
Holloway, Baker, Culpepper & Brunson by William H. Baker and Bobby L. Culpepper, Jonesboro, for defendants-appellees.
Before BOLIN, HALL and WILLIAMS, JJ.
En Banc. Rehearing Denied May 28, 1974.
BOLIN, Judge.
On September 14, 1973, Olinkraft, Inc., leased to plaintiff several thousand acres of land located in Winn and Jackson parishes. The lease granted plaintiff the exclusive right "to hunt, fish, pursue, capture, shoot, kill and take away all legal types and species of game fish, game birds and game animals" on the described land.
On November 29, 1973, plaintiff instituted the present action against defendants seeking a temporary restraining order, a preliminary and permanent injunction prohibiting any of defendants from trespassing on the leased premises in order to hunt, kill, or take any game animals therefrom. The lower court granted a temporary restraining order and in due course the rule to show cause why a preliminary injunction should not issue was called and tried. Following trial, the lower court rendered judgment rejecting plaintiff's demands for a preliminary injunction and plaintiff applied to this court for writs of prohibition, certiorari and mandamus, which were granted. Plaintiff further perfected a devolutive appeal to this court. The hearing on the writs previously issued by this court was consolidated with the argument on the appeal.
*895 The primary issue is whether plaintiff-lessee is entitled to a preliminary injunction prohibiting defendants from trespassing on lands which plaintiff has leased for hunting and fishing purposes.
We make the following factual findings: all of the defendants were within the area covered by the lease for the purpose of hunting deer; at least one of the defendants admitted he was on the property for the purpose of hunting deer but that he did not desire to join plaintiff's hunting club; that he intended to continue hunting deer without paying any money for the privilege. An agent of the State Wildlife and Fisheries Department testified he saw a freshly-killed deer on the premises and that one of the defendants freely admitted he had killed the deer.
Counsel for defendants argue that, because the evidence reflects one or more of defendants were in automobiles which were parked on roads, they were not trespassing on any property covered by plaintiff's lease. This contention does not impress us, principally because the roads were owned by Olinkraft and not the public. We are further convinced the evidence abundantly shows defendants were trespassing on the land itself.
The lease from Olinkraft to plaintiff contains several provisions granting lessee the exclusive right to use the premises for hunting and recreational purposes. The lease further provides the lessee "shall protect the leased premises against trespassers".
Louisiana Code of Civil Procedure Article 3601 provides:
"An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.
* * * * * *
"During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, in accordance with the provisions of this Chapter.
"Except as otherwise provided by law, an application for injunctive relief shall be by petition."
(Emphasis ours)
Contrary to the finding of the trial judge, we are convinced plaintiff has shown that it will suffer "irreparable injury, loss, or damage" unless a preliminary injunction is granted in this case. This appears to be the very type of case for which injunctive relief would be the only effective remedy. Indeed, plaintiff's only reason for obtaining a lease on the property was to have the exclusive right to use it for recreation and hunting. After defendants have trespassed on plaintiff's leased premises and killed and taken game therefrom, no monetary award would adequately compensate for this loss.
We have been cited to Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3d Cir. 1972) by counsel for both appellant and appellees. In that case, strikingly similar to the instant case in that it involved a hunting lease, the court on rehearing affirmed a judgment of the trial court permanently enjoining defendants from trespassing on the leased premises. However, there was a concurring opinion by Judge Domengeaux following both the original opinion and the rehearing opinion which we find contains the better statement of the law:
"It is my belief now, that the continuous acts of trespass on plaintiff's leased lands by defendant, and the taking of game thereon, all of which is supported by the record, are such acts as can be enjoined under CCP Article 3601 because these acts constitute injuries for which an equally adequate remedy is not available on the law side of the court."
From the facts of the case before us, we see no reason to look any further in our law for authority to grant an injunction than Louisiana Code of Civil Procedure *896 Article 3601. In West v. Winnsboro, 252 La. 605, 211 So.2d 665, our Supreme Court, on rehearing, stated an injunction is an equitable remedy under Code of Civil Procedure Article 3601, which is available to a plaintiff who is without an adequate remedy at law. The court defined "adequate remedy at law" in the following terms:
"By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity. See Banjavich v. Louisiana Licens. Bd. f Marine Divers, supra [237 La. 467, 111 So.2d 505]; de Funiak, Handbook of Modern Equity § 5, pp. 9-10 (2d ed. 1956); McClintock on Equity § 43, p. 103 (2d ed. 1948); 27 Am.Jur.2d, Equity, § 94, pp. 616-617; and 28 Am.Jur., Injunctions, § 39, pp. 534-535."
The test is correctly stated in 28 Am. Jur., Injunctions, § 39, page 534, as follows:
"It is not enough that there is a remedy at law. The remedy, to preclude injunction, must be certain and reasonably prompt, and as practicable and efficient to the ends of justice and its administration, both in respect of the final relief and the mode of obtaining it, as an injunction would be."
For the reasons assigned the alternative writs previously issued by this court are made absolute and the judgment appealed from is reversed. It is now ordered, adjudged and decreed that a preliminary injunction issue herein enjoining defendants, A. J. Tolbert, Joe Thompson, Leon Temple, Howard Temple, and Alfred E. Antley, from entering and trespassing upon any of the property leased from Olinkraft, Inc., to Caney Hunting Club, Inc., in Winn and Jackson parishes, in order to hunt, fish, pursue, capture, shoot, kill, and take away legal types of game, fish, game birds, and game animals, said leased property being more particularly described in that certain lease filed in the public records of Winn Parish, Louisiana, on September 18, 1973, under Clerk's Registry No. 88,468, and recorded in Conveyance Book 121, page 368; and also filed in the public records of Jackson Parish, Louisiana, on September 20, 1973, under Clerk's Registry No. 216, 326 and recorded in Conveyance Book 146, page 476.
It is further ordered that the case be remanded for further proceedings consistent with the views expressed herein, assessment of costs to await the final outcome of the case.
| {
"pile_set_name": "FreeLaw"
} |
851 S.W.2d 491 (1993)
Anna BASHAM, Appellant,
v.
Roy WILKINS, Jr., Appellee.
No. 92-CA-000168-MR.
Court of Appeals of Kentucky.
January 8, 1993.
Discretionary Review Denied by Supreme Court May 19, 1993.
Robert H. Littlefield, Louisville, for appellant.
Alec G. Stone, Brandenburg, for appellee.
Before DYCHE, JOHNSON and SCHRODER, JJ.
SCHRODER, Judge:
This is an appeal from an order granting custody of a child born out of wedlock to the natural father in a proceeding subsequent to the paternity action. Although we disagree as to the standard applied by the lower court in awarding custody in this case, we affirm the lower court's decision to award custody to the father.
Matthew Wilkins was born to appellant, Anna Basham, on December 30, 1987. An action was filed by appellant against appellee, Roy Wilkins, in the Meade District Court to establish paternity and set child support. An agreed judgment and order was entered on June 15, 1988, wherein appellee admitted paternity and agreed to pay child support. After entry of that order, appellee petitioned the district court for visitation of Matthew. An agreed order was entered on July 13, 1988, allowing appellee *492 to have visitation every other weekend and alternate holidays. No custody determination was ever made by the court.
Appellant married Jeffrey Basham on September 11, 1987. During the next three years, she experienced significant mood swings. One especially severe period of depression led appellant to attempt suicide on September 26, 1990. After being hospitalized for one and a half days at Breckinridge Memorial Hospital, appellant voluntarily admitted herself for a two-week treatment program at Western State Hospital. While hospitalized, appellant was diagnosed with Bipolar disorder, a mental illness characterized by alternating periods of mania and depression. Following her hospitalization, appellant was prescribed Eskalith and Elavil which appeared to stabilize her condition.
During appellant's hospitalization, appellant requested that appellee keep Matthew over the weekend for his regularly scheduled visitation time. Appellee picked up the child and thereafter refused to return him to appellant. On October 8, 1990, appellee filed a petition for an order of emergency custody in the Meade District Court. A temporary removal order was entered by the court on October 10, 1990, giving appellee temporary custody.
On November 13, 1990, appellee filed a petition with the Meade Circuit Court seeking permanent custody. In his petition, appellee alleged that appellant and Jeffrey Basham were not properly caring for Matthew and that it would be in Matthew's best interest to grant appellee custody. Appellee subsequently amended his petition, alleging that Matthew's emotional and physical well being were endangered by being in appellant's custody.
A hearing was held before the domestic relations commissioner on June 20, 1991. Testifying for appellee were: appellee; appellee's wife since April 22, 1989, Susan Wilkins; Vicki Ammons, a friend of Wilkins who baby-sat Matthew; and Bryan Ammons, Vicki's husband. Testifying for appellant were: appellant; Jeffrey Basham; and Juanita Basham, Jeffrey's mother who sometimes watched Matthew.
In his recommended findings of fact, the domestic relations commissioner applied the "serious endangerment standard" pursuant to KRS 403.340(2)(c) for a modification of custody, noting that "it is implicit in any determination of parentage in District Court . . . that it has made a determination of custody." The commissioner then found that appellee failed to carry his burden of proof. Appellee filed exceptions to the commissioner's report, and the matter was submitted to the Meade Circuit Court for its final determination.
In its final order, entered December 23, 1991, the Meade Circuit Court declined to follow the commissioner's recommendations, finding that the appellant's home environment "seriously endangers his physical, mental, moral and emotional health and that there would be no harm caused by a change of environment. KRS 403.340(2)(c)." The court cited inappropriate physical discipline on the part of Jeffrey Basham and appellant's mental state and behavior when not on her medication as support for its decision. From that order, appellant now appeals.
Appellant first argues that the trial court should apply the "serious endangerment" standard in KRS 403.340(2)(c) for a modification of custody rather than the "best interest of the child" standard in KRS 403.270 for an initial custody determination. The trial court in this case did apply the "serious endangerment" standard, but apparently appellant seeks to peremptorily counter the impending argument of appellee that the less strict "best interest of the child" standard should have been applied.
At common law, the mother, as natural guardian, had the sole right to custody and control of the child. Baker v. Winfrey, 54 Ky. 499, 15 B.Mon. 499 (1854). It was in Phillips v. Horlander, Ky., 535 S.W.2d 72 (1975), that a father's legal right to visitation of his illegitimate child was first upheld in Kentucky. In Phillips, supra, the Court recognized the necessity and benefit of the child having contact with the father:
*493 In many instances the putative father may instill in the child a sense of stability. He may develop qualities in the child which the mother is uninterested, unwilling or incapable of developing. To the extent that a father can perform such a valuable service his presence becomes exceedingly important. Id. at 74.
The United States Supreme Court held in a case where the father sought custody after the mother's death, that equal protection requires unwed fathers to be given the same custody rights as married fathers. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). In Sweat v. Turner, Ky., 547 S.W.2d 435 (1976) and Sumner v. Roark, Ky.App., 836 S.W.2d 434 (1992), the Kentucky Courts addressed the father's right to custody of his illegitimate child after the mother's death. In Sweat, supra, the Court stated:
So long as a father can produce reliable evidence that he is the father and is not a stranger to the child, and that the best interest of the child would result, the putative father may petition the circuit court for custody. (Emphasis added) Id. at 437.
Last, but not least, KRS 403.270 itself leaves little doubt that the "best interest of the child" standard should be applied as it provides, "[T]he court shall determine custody in accordance with the best interest of the child and equal consideration shall be given to each parent." (Emphasis added). See Jones v. Jones, Ky.App., 577 S.W.2d 43 (1979). We reiterate the following sentiment expressed in Phillips, supra:
This court is of the opinion that now is the time to rend the veil of puritan precepts through which unwed fathers are viewed as nonpersons. Id. at 74.
Accordingly, the "best interests of the child" standard applies in determining custody of children born out of wedlock and gone is our preference for the mother of the illegitimate child.
The domestic relations commissioner in this case applied the "serious endangerment" standard for modification of custody because he was of the opinion that a custody determination had been implicitly made in the previous paternity action in district court. We do not agree. While the appellant voluntarily had custody of the child and the district court allowed appellee visitation, no custody determination was ever made by the court considering the best interest of the child. See State ex rel. Laughlin v. Hugelman, 219 Neb. 254, 361 N.W.2d 581 (1985). Moreover, it has been held that the district court does not have jurisdiction to make a custody determination in a paternity action. Cummins v. Cox, Ky., 799 S.W.2d 5 (1990); Sumner v. Roark, Ky.App., 836 S.W.2d 434 (1992). A paternity action is for support, while visitation and custody disputes must be resolved in circuit court. Sumner, supra.
We are compelled to point out that in a case such as the one at hand where the mother voluntarily has custody for a period of time before the father petitions for custody, clearly the length of time which the child has been with the mother and the bonding that has occurred during that time would be significant factors in determining what is in the best interest of the child. However, such factors were outweighed in this case by other evidence that it was in the best interest of the child for appellee to have custody.
The trial court's findings of fact regarding custody will not be overturned unless clearly erroneous. Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986). We believe there was substantial evidence to support the trial court's findings and ultimate decision to award appellee custody, even though it applied the incorrect standard.
The court was concerned about appellant's bipolar disorder and her ability to parent when affected by the illness. There was ample evidence questioning appellant's parenting skills due to the illness. Appellant's suicide attempt was the most extreme example. During another one of her depressive episodes, appellant left her husband and stayed for a month with Matthew and her other child in a motel.
Appellant maintains the trial court erred in considering appellant's mental condition *494 at a time other than the time of the hearing. We cannot agree. Appellant's past mental state and her ability or inability to parent during that state is entirely relevant to appellant's ability to parent in the future because appellant's mental state may and has changed. As to appellant's contention that her condition is being controlled by medication, there was evidence in the record that she suffered a severe depressive episode after being on the medication. There was also evidence in the record (the home study by Social Services) that the medication itself has negatively affected her ability to parent.
The trial court also had legitimate concerns about Jeffrey Basham's inappropriate use of physical discipline on the small child. More significantly, there was evidence that a previous child of appellant was removed from her home, apparently due to neglect. Finally, the evidence as to appellee and his wife's ability to care for the child was favorable. The child has a close relationship with appellee and his wife and there was evidence he is more happy, stable, and secure in their care.
The remaining issue raised by appellant is that the trial court erred in rejecting the recommended findings of fact of the domestic relations commissioner. The trial court can adopt, modify or reject the commissioner's recommendations. CR 53.06(2). The trial court had the benefit of the full record, but placed greater weight on certain evidence than did the commissioner. The trial court simply drew different conclusions from the evidence, supporting them with his own findings of fact. We see nothing impermissible in his so doing since his findings were supported by substantial evidence.
For the reasons stated above, the judgment of the Meade Circuit Court is hereby affirmed.
All concur.
| {
"pile_set_name": "FreeLaw"
} |
27 So.3d 630 (2008)
BRUCE LAMAR HILL
v.
STATE.
No. CR-07-0946.
Court of Criminal Appeals of Alabama.
September 12, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Reh. denied.
| {
"pile_set_name": "FreeLaw"
} |
699 F.Supp.2d 772 (2010)
Steven G. MOORE, Plaintiff,
v.
CAPITOL FINISHES, INC., Defendant.
Civil Action No. 2:09cv392.
United States District Court, E.D. Virginia, Norfolk Division.
March 9, 2010.
*773 Carlton F. Bennett, Craig Stewart Gill, Jr., Catherine Maclean Six, Bennett & Zydron PC, Stephen C. Swain, Shuttleworth Ruloff Swain Haddad & Morecock PC, Virginia Beach, VA, Stephen Mark Smith, Hampton, VA, for Plaintiff.
Andrew Anthony Protogyrou, Marcus Colston Jones, Nicholas Lee Woodhouse, Protogyrou & Rigney PLC, Norfolk, VA, for Defendant.
OPINION AND ORDER
JEROME B. FRIEDMAN, District Judge.
Currently before the court is defendant Capitol Finishes, Inc.'s motion for summary judgment. The motion was fully briefed, and the court heard oral argument on the motion on January 11, 2010. By Memorandum Order dated January 14, 2010, the court granted a joint motion by the parties to stay further proceedings, including discovery-related activities, in this case pending the court's decision on the instant motion. The court also indicated therein that it required additional information in connection with the instant motion and, to that end, ordered the parties to file supplemental submissions detailing the benefits plaintiff has received under the Virginia Workers' Compensation Act, Title 65.2 of the Code of Virginia (the "Virginia Act"), and the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. (the "Longshore Act"), as well as information regarding the processes involved in him applying for, receiving, and appealing the denial of such federal and state benefits. Plaintiff filed his court-ordered submission on January 28, 2010, and defendant filed its response on February 10, 2010. Plaintiff did not file a reply to defendant's response. The court believes it now has all of the factual information it considers necessary to render an informed decision on the instant motion. For the reasons stated herein, the court DENIES defendant's motion for summary judgment, but also states, pursuant to 28 U.S.C. § 1292(b), that it is of the opinion that this Opinion and Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this Opinion and Order to the United States Court of Appeals for the Fourth Circuit will materially advance the ultimate termination of this litigation. Consequently, this matter will continue to be STAYED until further order of this court or the Fourth Circuit, and this court will DENY all other pending motions in this matter, without prejudice and with leave to re-file after such further order.[1]
*774 PROCEDURAL HISTORY
This matter was removed from the Norfolk Circuit Court to this court pursuant to this court's diversity jurisdiction on August 5, 2009. Defendant filed the instant motion on October 19, 2009. Plaintiff filed his memorandum in opposition to the instant motion on October 26, 2009. Defendant was granted leave to file a third-party complaint against W.M. Barr & Co., Inc. by Order of United States Magistrate Judge Tommy E. Miller dated October 27, 2009. On October 29, 2009, defendant filed its rebuttal brief in further support of the instant motion. On November 2, 2009, plaintiff filed a motion for leave to file a "surrebuttal" brief in further opposition to the instant motion. On that same date, defendant filed its third-party complaint against W.M. Barr & Co, Inc. On November 4, 2009, without leave of court, plaintiff filed his proposed "surrebuttal" brief, to which defendant objected and to which plaintiff, in turn, replied. By Memorandum Order dated November 20, 2009, the court denied plaintiff's motion for leave to file his "surrebuttal," and instead ordered oral argument on the instant motion, at which time both sides could fully argue their respective positions. On December 4, 2009, plaintiff filed a motion for leave to file supplemental documents supporting his opposition to the instant motion, which this court, by Memorandum Order entered earlier today, found to be moot in light of plaintiffs subsequent submission of these documents to the court at oral argument and in his court-ordered submission. The parties subsequently filed several other motions, most of which related to discovery, and at least one of which is still pending decision. The court heard oral argument on the instant motion on January 11, 2010, at which time plaintiff reiterated substantially all of the contents of his proposed "surrebuttal" brief, including the cases cited therein. Defendant voluntarily dismissed its third-party complaint against W.M. Barr & Co., Inc. pursuant to Rule 41(a)(1)(A)(i) on January 13, 2010.[2] As noted above, by Memorandum Order dated January 14, 2010, the court granted a joint motion by the parties to stay further proceedings in this case pending the court's decision on the instant motion, and requested additional information from the parties, which the parties subsequently provided. The jury trial in this matter is currently scheduled to commence on April 19, 2010.
STANDARD OF REVIEW
Summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Terry's Floor Fashions, Inc. v. Burlington Industries, Inc., 763 F.2d 604, 610 (4th Cir.1985); Fed. R.Civ.P. 56(c). Although the initial burden obviously falls on the moving party, once the movant has properly filed evidence supporting summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but must instead *775 set forth specific facts in the form of exhibits and sworn affidavits illustrating a genuine issue for trial. Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548; Cray Commc'ns, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393-94 (4th Cir.1994). In other words, while the movant must carry the burden to show the absence of a genuine issue of material fact, when such burden is met, it is up to the non-movant to establish the existence of such an issue. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. When considering the non-moving party's submissions, "the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party." Smith v. Va. Commonwealth Univ., 84 F.3d 672, 675 (4th Cir.1996) (en banc).
In determining whether the non-moving party has established the existence of a genuine issue of material fact, facts must be deemed "material" if they are necessary to the resolution of the case and "genuine" if they are based on more than speculation or inference. Thompson Everett, Inc. v. Nat'l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir.1995). If, after reviewing the record, it appears that a "reasonable jury could return a verdict for [the nonmovant], then a genuine factual dispute exists and summary judgment is improper." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The inquiry performed is the threshold inquiry of determining whether there is the need for a trialwhether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.").
ANALYSIS
Unlike the context of most summary judgment motions, there is no dispute as to the facts of this case. Instead, the sole question presented to the court by the instant motion is whether plaintiff's cause of action against defendant for negligence under the general maritime law of the United States may be precluded as a matter of law by the exclusivity provision of the Virginia Act, section 65.2-307 of the Code of Virginia.
I. The Virginia Supreme Court's Approach: Balancing of State and Federal Interests
As plaintiff noted in his brief in opposition to defendant's motion for summary judgment ("Opp'n"), this case bears a striking resemblance to the Virginia Supreme Court's decision in Mizenko v. Electric Motor & Contracting Co., Inc., 244 Va. 152, 419 S.E.2d 637 (1992). In Mizenko, the plaintiff was an employee of Abacus Temporary Services ("Abacus"), which had subcontracted with general contractor Metro Machine Corporation ("Metro") to provide skilled labor for the repair of the naval destroyer U.S.S. Compte de Grasse. Id. at 639. Metro had separately contracted Electric Motor & Contracting Co. ("Electric") to perform other maintenance work on the U.S.S. Compte de Grasse. Id. The plaintiff there alleged that he was injured by the actions of Electric, and he had received workers' compensation for his injuries through his employer (Abacus) under the Longshore Act. Id.
Similarly, in this case plaintiff was an employee of Tecnico Corporation ("Tecnico"), which subcontracted with general contractor BAE Systems to provide skilled labor for the repair of the U.S.S. Leyte Gulf. The only factual difference with respect to the relationship between the parties appears to be that, in this case, it was plaintiff's direct employer, Tecnico, and not the general contractor, BAE Systems, that subcontracted defendant to perform the work that was allegedly the source of *776 plaintiffs injury. It does not appear that this factual divergence has any impact on the applicable legal analysis.
In Mizenko, a majority of the Virginia Supreme Court affirmed the dismissal of the plaintiffs claim against the general contractor, Metro, but reversed the dismissal of the plaintiffs claim against the sub-contractor, Electric. 419 S.E.2d at 645; see also Metro Mach. Corp. v. Mizenko, 244 Va. 78, 419 S.E.2d 632 (1992) (companion decision regarding Metro's appeal of the trial court's denial of its motion for summary judgment). The court recognized that although the Virginia Act contained language explicitly precluding the availability of other remedies, the plaintiffs cause of action had been asserted, as in this case, as a federal maritime tort within the jurisdiction of admiralty, and not merely under the common law.[3]Mizenko, 419 S.E:2d at 639-40. The court noted that although the Longshore Act, which in some respects parallels the Virginia Act, provides that "an employee may not bring a negligence action against a `person in the same employ,'" it nevertheless "permits an injured employee to bring a negligence action against a third party." Id. at 641-42. The court discussed "whether a subcontractor is a `person in the same employ' with an individual employee of the prime contractor," and concluded on the basis of decisions from several other jurisdictions that it is not. Id. at 642. In sum, the court determined that the broad language of the Virginia Act's exclusivity provision precluded the filing of certain actions that the Longshore Act did not. Consequently, to the extent there existed a conflict between federal general maritime law and the relevant provisions of Virginia statutory law, the court had to balance the competing interests and policies served by these bodies of law and decide which were of greater import. Id. at 640-41(noting that "[w]here there is an admiralty-state law conflict, courts have examined and weighed the respective interests behind each law to determine whether federal law should supplant the application of state law.").
With regard to the balancing of the competing state and federal interests actually implicated in Mizenko, the Virginia Supreme Court acknowledged that the plaintiff "ha[d] a substantive admiralty right against Electric arising from the general maritime law," which the court viewed "as a compelling federal aspect in [its] review process." Id. at 642-43. With regard to Virginia's countervailing interest, the court held "that the state interest in this case is minimal." Id. at 644. The court proceeded to justify this holding by observing:
Since Mizenko is receiving workers' compensation benefits under the Longshore Act, rather than the Virginia Act, we are not confronted with a situation where a worker is attempting to repudiate one portion of the Virginia Act [i.e., the exclusivity provision] while he is accepting benefits under another portion of the Act. Thus, the balance struck by the Virginia Act, in providing compensation to workers, in return for which immunity is afforded to defined employers, is not implicated in this case.
Mizenko, 419 S.E.2d at 644. On the basis of these considerations, the court ultimately held:
*777 [T]here is no state interest present in this case which outweighs the need for uniformity in the application of the general maritime law. To take away Mizenko's federal right of action, merely because his ship was located in navigable waters in a Virginia port, would undermine basic principles of federal uniformity with no measurable benefit resulting to the state.
Id. Consequently, the court refused to "give effect ... to the Virginia Act's exclusivity provision" and, over the dissent of three Justices, including the Chief Justice, reversed the trial court's dismissal of the plaintiffs claim against Electric. Id. at 644-45.
Defendant claimed in support of the instant motion, as it did in its Answer and Plea in Bar prior to this case's removal, that plaintiffs sole remedy lies in the provisions of the Virginia and Longshore Acts, and that plaintiffs tort claim in this case is therefore precluded as a matter of law. Defendant emphasized that, unlike the plaintiff in Mizenko, plaintiff here has sought to avail himself of benefits under the Virginia Act. Defendant argued on that basis that the analysis in the instant case therefore points to the opposite outcome; namely, that the Virginia Act's exclusivity provision should be given effect, because plaintiff is allegedly attempting to repudiate that provision while simultaneously seeking benefits under other provisions of the Virginia Act. Consequently, defendant argued, Virginia's strong state interest in the enforcement of its workers' compensation law, including the immunities granted by it, is implicated in this case, and should trump any general federal interest in maintaining uniformity in the application of maritime law. See id. at 644.
II. The Supremacy Clause Approach
Plaintiffs opposition to the instant motion is premised entirely on the (undisputed) fact that plaintiffs claim against defendant is properly considered a federal maritime tort arising within the jurisdiction of admiralty. Plaintiff argues that it therefore makes no difference whether plaintiff has sought or recovered benefits under the Virginia Act, the Longshore Act, or both, because the Supremacy Clause of the United States Constitution precludes the Virginia Act's exclusivity provision from operating to deprive plaintiff of his federal maritime claim.
Despite the apparent inconsistency of this absolutist analysis with the detailed balancing test employed by the Virginia Supreme Court in Mizenko, plaintiff appears to have support in case law for this position. In Garvin v. Alumax of South Carolina, Inc., 787 F.2d 910 (4th Cir.1986), the Fourth Circuit addressed a factual situation somewhat analogous to the instant case. In Garvin, the plaintiff longshoreman was injured while performing routine maintenance on a ship loader located on a pier. Consequently, plaintiffs claim fell within the so-called "twilight zone," within which the United States "Supreme Court held there was concurrent jurisdiction and the injured worker might safely proceed under either the [Longshore Act] or the state's workmen's compensation act at his election." Id. at 915 (citing Davis v. Dep't of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942)). The plaintiff in Garvin "chose, of course, to claim the higher benefits available under the federal statute [i.e., the Longhsore Act], and the question is whether that choice limits the defenses available to a contractor in the position of [the defendant] when faced with a tort action founded entirely upon South Carolina law." 787 F.2d at 916.
The Fourth Circuit approached the case "[a]gainst the backdrop of congressional concern to preserve and protect application by the states of their own workmen's compensation schemes and the purpose of *778 the [Longshore Act]'s 1972 landward extension to `supplement,' not to `supplant,' state compensation acts." Id. (quoting Sun Ship Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980)). The court found that the applicable state "rule of immunity of a contractor in the position of [the defendant] is different from that under the [Longshore Act], but not in conflict with it, for Congress has not purported to prescribe the immunity rules to be applied by states in actions brought upon state law claims," such as the claim advanced by the plaintiff there. Garvin, 787 F.2d at 917. The court explained: "The federal immunity rule is to be applied when the third party claim is a federal claim; when the third party claim is a state law claim, the immunity rules of that state are to be applied." Id. Thus, in light of the fact that the plaintiff raised only a state law tort claim, the Fourth Circuit panel held, over Circuit Judge Mumaghan's dissent, that the defendant was immune to that claim pursuant to state law. Id. at 918.
In Ward v. Norfolk Shipbuilding & Drydock Corp., 770 F.Supp. 1118 (E.D.Va. 1991), the District Court addressed an issue even closer to the instant one, namely, "whether an injured worker who is receiving benefits under the [Longshore Act] may be barred by a state-law immunity available to `statutory employers' from asserting a tort claim against a contractor for whom his immediate employer was performing work at the time of the injury." Id. at 1119. The defendant there argued that the Virginia Act applied to the plaintiffs federal maritime tort claim "because plaintiff was a harbor worker injured on navigable waters," and therefore "his cause of action [fell] within the `twilight zone'that area where an injured harbor worker is eligible for benefits under either the [Longshore Act] or under a state compensation statute, in this case the Virginia Act." Id. at 1120.
The District Court discussed the Fourth Circuit's decision in Garvin as "[t]he closest case presenting the issue in the Fourth Circuit," and noted Garvin's holding that "if [the plaintiff] has a federal claim against [the defendant general contractor], the federal immunity rule applies, which operates to provide immunity only for [the plaintiffs] immediate employer ... thereby leaving [the general contractor defendant] subject to suit." Ward, 770 F.Supp. at 1120-21. The District Court noted that "[t]his rule ... is consistent with the Supreme Court's holding in Pope & Talbot, Inc. v. Hawn, in which the Court stated that `a state may not deprive a person of any substantial admiralty rights as defined in the controlling acts of Congress or by interpretative decisions of this Court.'" Ward, 770 F.Supp. at 1121 (quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410, 74 S.Ct. 202, 98 L.Ed. 143 (1953)) (internal citation omitted). The District Court explained that "[t]he ultimate issue in this case, then, is whether [the plaintiff] has a federal maritime cause of action against [the general contractor defendant]." Ward, 770 F.Supp. at 1121. The District Court concluded that "[b]ecause federal law provides for the cause of action that [the plaintiff] seeks to assert against [the defendant], the Virginia Act cannot make [the defendant] immune from the cause of action." Id. at 1122. Consequently, the District Court denied the general contractor defendant's motion for summary judgment.
III. Discussion
A. The Inconsistency of Mizenko with Garvin and Ward
It is clear from the foregoing discussion that the Virginia Supreme Court's balancing test approach in Mizenko, which defendant urges this court to employ, is inconsistent with the apparent Supremacy *779 Clause-based approach of Garvin and Ward, which plaintiff urges this court to employ. Plaintiff's proposed analysis effectively ends with the court's determination of whether or not plaintiff's claim is properly construed to be a recognized claim relating to events that occurred on navigable waters in connection with traditional maritime activities. If the court construes his claim as such, plaintiff argued, the benefits he sought or received under the Virginia Act or the Longshore Act are irrelevant, and plaintiff's claim must survive summary judgment. However, contrary to plaintiff's argument, under Mizenko the court's analysis would not end, but instead begin, with the determination that a plaintiff's claim is properly considered a federal maritime tort claim. Once such a determination is made, the court would then have to balance that federal interest against any countervailing state interests to determine which should prevail.
The court notes that none of these cases actually involved the precise factual scenario that this case presents. Garvin dealt with a state law tort claim and a defense based on the immunity provision of South Carolina's workers' compensation law. Ward and Mizenko both dealt with federal maritime tort claims by plaintiffs who had only sought benefits under the Longshore Act. Admittedly, the Mizenko court explicitly included consideration of the absence of claims for benefits under the Virginia Act in its analysis. Likewise, the District Court in Ward noted that the plaintiff there "has asserted no claim created by or arising out of Virginia law" in discussing the federal maritime nature of his tort claim. 770 F.Supp. at 1122. The court also notes the irony that plaintiff's argument in opposition to the instant motion ignores entirely the detailed balancing test undertaken by the Virginia Supreme Court in Mizenko, the very case plaintiff originally cited in support of his argument and characterized as "strikingly similar" to the instant case. Opp'n at 2. However, as discussed below, it may well be that the correct approach to analyzing this issue renders that particular factual variation irrelevant.
After a careful review of relevant case law and extensive deliberationboth of which, of necessity, extended far beyond the relatively cursory arguments and citations by the parties in this casethe court believes that the federal cases on which the Virginia Supreme Court relied in formulating its balancing test in Mizenko misstated the proper nature of that test. The court will first discuss the competing lines of federal cases involved, and then explain its reasoning in rejecting the line of cases that provided the balancing test used in Mizenko.
B. The Mizenko Balancing Test's Basis in Eleventh Circuit Jurisprudence
The Virginia Supreme Court indicated that "[i]n making this evaluation, we employ the Chelentis analysis as explained in Steelmet Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir.1986)." Mizenko, 419 S.E.2d at 641 (citing Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918)). The language from Steelmet quoted in part in Mizenko reads in its entirety:
Summarizing this body of law: One must identify the state law involved and determine whether there is an admiralty principle with which the state law conflicts, and, if there is no such admiralty principle, consideration must be given to whether such an admiralty rule should be fashioned. If none is to be fashioned, the state rule should be followed. Wilburn Boat [Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955)]. If there is an admiralty state law conflict, the comparative interests *780 must be consideredthey may be such that admiralty shall prevail, as in Kossick [v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961) ], or if the policy underlying the admiralty rule is not strong and the effect on admiralty is minimal, the state law may be given effect, as in Olympic Towing [Corp. v. Nebel Towing Co., 419 F.2d 230 (5th Cir.1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970) ].
Steelmet, 779 F.2d at 1488.
Admittedly, the Virginia Supreme Court's gloss on this language in Steelmet was substantially the same as the United States Court of Appeals for the Eleventh Circuit's own interpretation of it in Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir.1990), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991). In Brockington, the Eleventh Circuit explained, "[t]he general rule is that with admiralty comes the application of substantive admiralty law and, absent a relevant statute, the general maritime law, as developed by the judiciary, will apply." Id. at 1529 (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)). The Eleventh Circuit continued:
As is the case with most general rules, there are exceptions to the usual supremacy of federal maritime law. In fact, the Supreme Court pointed out that "the claim of federal supremacy [in admiralty cases] is adequately served by the availability of a federal forum in the first instance and of review in this Court to provide assurance that the federal interest is correctly assessed and accorded due weight."
Brockington, 903 F.2d at 1529-30 (quoting Kossick, 365 U.S. at 739, 81 S.Ct. 886) (alteration in original). "Consequently, federal courts sitting in admiralty should, according to the dictates of comity, acknowledge and protect state-created rights, even at times to the exclusion of an existing maritime law." Brockington, 903 F.2d at 1530. Then, quoting the same language from Steelmet quoted in Mizenko, the Eleventh Circuit proceeded to balance the federal interest in promoting uniformity in maritime law, which it described as "the driving consideration underlying the preference for application of federal maritime law in admiralty cases," against the "[c]ountervailing state interests," such as "the interest in being permitted to regulate independently matters of local concern without interference by the federal government." Id. (citing Askew v. Am. Waterways Operators, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) and Just v. Chambers, 312 U.S. 383, 388, 61 S.Ct. 687, 85 L.Ed. 903 (1941)). The Eleventh Circuit engaged in an extensive analysis, concluding that "the state has a strong interest in application of its worker's compensation law with no comparable interest to tip the balance in favor of application of general maritime law." Brockington, 903 F.2d at 1532. Accordingly, "[b]ecause [the plaintiff] ha[d] recovered under the [Georgia workers' compensation] statute, the exclusivity provision precludes any further recovery," and the defendant's "motion for summary judgment with respect to plaintiffs' claim under general maritime law" was granted. Id. at 1533.
C. The Fifth Circuit's Critical Analysis of the Eleventh Circuit's Balancing Test
The Eleventh Circuit's articulation of the appropriate balancing test, however, is neither the only possible reading of the relevant Supreme Court jurisprudence nor even necessarily a widely accepted one.[4]*781 Indeed, the United States Court of Appeals for the Fifth Circuit has explicitly rejected aspects of the Eleventh Circuit's approach in Brockington. See Green v. Vermilion Corp., 144 F.3d 332, 336-37 (5th Cir.1998). cert. denied, 526 U.S. 1017, 119 S.Ct. 1251, 143 L.Ed.2d 349(1999). In Green, the Fifth Circuit discussed its prior decision in Thibodaux v. Atlantic Richfield Co., 580 F.2d 841 (5th Cir.1978), in which the court was "`squarely presented with the issue of whether an exclusive remedy provision in a state workmen's compensation statute can operate to deprive a party of a cause of action afforded by federal maritime law.'" Green, 144 F.3d at 336 (quoting Thibodaux, 580 F.2d at 846). The Fifth Circuit in Thibodaux "concluded that relevant Supreme Court and Fifth Circuit precedent made `it clear that an exclusive remedy provision in a state workmen's compensation law cannot be applied when it will conflict with maritime policy and undermine substantive rights afforded by federal maritime law.'" Green, 144 F.3d at 336 (quoting Thibodaux, 580 F.2d at 847). The Fifth Circuit in Thibodaux thus "specifically held that `the exclusive remedy provision of the Louisiana Workmen's Compensation Act' does not preclude a plaintiff from pursuing a claim for wrongful death occasioned in state territorial waters since the Supreme Court has expressly recognized such a suit under admiralty jurisdiction." Green, 144 F.3d at 336 (quoting Thibodaux, 580 F.2d at 847).
The Fifth Circuit in Green then proceeded to note that in Brockington "[t]he Eleventh Circuit appears to have charted a different course as it barred a plaintiff from asserting a negligence claim under general maritime law where an exclusivity provision of a state workers' compensation scheme applied." Green, 144 F.3d at 336-37. The Fifth Circuit acknowledged that "[t]here are conflicting lines deciding the force to be given an exclusive remedy provision of a state workers' compensation statute in the maritime context," noting that "[a]pparently the court in Brockington only unearthed the line of Supreme Court cases giving preclusive effect to state workers' compensation statutes" and explaining that since the Fifth Circuit's holding relied heavily on the "more venerable line of Supreme Court precedent which the Eleventh Circuit did not treat," it thought that the split with the Eleventh Circuit created by its holding would be "short-lived." Id. at 339 n. 3 and accompanying text.
The Fifth Circuit observed that "[o]ne line of cases unequivocally holds that state workers' compensation statutes can not preclude an employee from asserting a general maritime negligence claim against his employer for injuries sustained on navigable waters during the course of his employment." Id. (collecting cases). That line of cases draws its authority from even earlier "cases refusing to subordinate federal admiralty principles to the dictates of state law." Id. at 339-40 (collecting cases). The court noted, however, that "other cases run directly contrary to" the foregoing lines of cases, "as they purport to hold that the exclusive remedy provision of a state workers' compensation statute precludes an employee from asserting a general maritime negligence claim against his employer." Id. at 340 (collecting cases). The Fifth Circuit further explained that "[t]hough there is an apparent rift in precedent, the Supreme Court harmonized its cases on the grounds that the state workers' compensation statutes could only apply where the maritime tort involved matters of local concern which had remote or no relation to navigation or maritime commerce." Id. (citing Director, Office *782 of Workers' Comp. Programs, U.S. Dep't of Labor v. Perini N. River Assocs., 459 U.S. 297, 306, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983) & John Baizley Iron Works v. Span, 281 U.S. 222, 230-31, 50 S.Ct. 306, 74 L.Ed. 819 (1930)). Indeed, the Fifth Circuit emphasized that "the constant theme of these Supreme Court opinions is that the uniformity of admiralty law must be preserved and that state law may be applied only where it works no `material prejudice to the essential features of the general maritime law.'" Green, 144 F.3d at 340-41 (quoting Baizley, 281 U.S. at 230, 50 S.Ct. 306) (emphasis added). On the basis of its extensive analysis, the Fifth Circuit disagreed with the Eleventh Circuit's interpretation in Brockington of Thibodaux and King v. Universal Elec. Constr., 799 F.2d 1073 (5th Cir.1986), and emphasized that "[t]he key factor is maintaining uniformity in admiralty law and preserving the rights granted to maritime workers, not the degree of harm the worker suffers." Green, 144 F.3d at 341. The Fifth Circuit concluded that the relevant Supreme Court and Fifth Circuit precedent required it to "hold that the exclusive remedy provision of the Louisiana Workers' Compensation Act does not preclude [the plaintiff] from asserting his general maritime claim against [the defendant employer] for the non-fatal injuries he sustained during the course of his employment while upon navigable waters." Id.
D. Comparing the Fifth and Eleventh Circuit Tests with Garvin and Ward
Although the Fourth Circuit's opinion in Garvin contained a discussion of the relevant historical context that was broadly similar to the Fifth Circuit's exegesis in Greensee Garvin, 787 F.2d at 915-17 the Fourth Circuit was not faced there with a situation in which an actual conflict existed between federal and state law. Therefore, the Fourth Circuit did not need to discuss in detail the nature of the balancing test that should apply in such situations. See id. at 918 ("Since there is no conflict between differing rules of immunity and application of South Carolina's rule will not frustrate the effectiveness of any federal law ... the contractor ... is immune from this state tort claim."). Consequently, this court does not believe that Garvin authoritatively indicates the Fourth Circuit's position with respect to this Circuit split, which, contrary to the Fifth Circuit's expectations in Green, does not yet appear to have been resolved by the United States Supreme Court.
Nevertheless, this court is of the opinion that the Fifth Circuit's analysis in Green hews closer than the Eleventh Circuit's analysis in Brockington to the tenor of the Fourth Circuit's decision in Garvin and the prior decision of this District Court in Ward. Moreover, and perhaps more importantly, the court believes that Green, and not Brockington, correctly states the nature of the test for the resolution of conflicts between state law and admiralty. Contrary to the Virginia Supreme Court's suggestion that courts faced with such conflicts must "examine[ ] and weigh[ ] the respective interests behind each law to determine whether federal law should supplant the application of state law"Mizenko, 419 S.E.2d at 640-41the proper focus of the test is, as plaintiff urges in his opposition to the instant motion, primarily on the federal maritime nature of plaintiffs claim. The applicable law, properly construed, does not provide for a balancing test in the traditional sense, under which the relative strength of either side's interests can potentially "tip the balance in favor of [or against] application of general maritime law." Brockington, 903 F.2d at 1532; see also Mizenko, 419 S.E.2d at 644. Instead, a court must first determine whether the litigant has properly asserted *783 a substantive right that is recognized by federal general maritime law. If the court finds that the litigant has, in fact, asserted such a right, the court may give effect to otherwise-applicable state law if, and only if, the state law in question does not operate to deprive the litigant of that right. Hawn, 346 U.S. at 409-10, 74 S.Ct. 202; Green, 144 F.3d at 336-37; Thibodaux, 580 F.2d at 846-47; Ward, 770 F.Supp. at 1121-22. In the instant case, the Virginia Act's exclusivity provision would operate to preclude plaintiffs maritime tort claim entirely. Such a result would, of course, be the quintessence of deprivation. Accordingly, this court cannot allow the Virginia Act to preclude plaintiffs federal maritime tort claim, and defendant's motion for summary judgment must therefore be denied.
E. The Possibility of the Opposite Result Using the Mizenko Balancing Test
As previously indicated, the court's deliberations in this case were neither cursory nor uncomplicated. Had the court confined itself to the arguments in the parties' briefs, which, in retrospect, merely alluded to the tips of the dueling icebergs in this case, the Virginia Supreme Court's analysis in Mizenko might well have led this court to the opposite result with respect to the instant motion. As noted above, the Virginia Supreme Court's opinion in Mizenko contained language relating to the factual situation presented by the instant case,[5] and this court might well have concluded, using the Eleventh Circuit balancing test employed in Mizenko, that plaintiffs conduct in this case justified preclusion of his federal maritime claim. Although the Fifth Circuit test, which this court has determined to be the correct one, does not appear to take into account the comparative significance of the countervailing state interestsor, for that matter, a litigant's own conduct vis-a-vis the state laws implicatedthe court nevertheless believes it relevant, especially in light of the apparent Circuit split on this issue, to discuss at least briefly the state interests and factual considerations that might merit the opposite result under the Eleventh Circuit's balancing test.
Unlike in Mizenko, this court is "confronted with a situation where a [plaintiff] is attempting to repudiate one portion of the Virginia Act [i.e., the exclusivity provision] while he is" at least seeking "benefits under another portion of the Act." Mizenko, 419 S.E.2d at 644. As discussed in far greater factual detail in the court's Memorandum Order entered earlier today, in this case, plaintiffs employer secured for him benefits under the Longshore Act after he was injured. Plaintiff thereafter separately sought, through counsel, supplemental benefits under the Virginia Act, and prevailed at a hearing before a Deputy Commissioner of the Virginia Workers' Compensation Commission (the "Commission"), who awarded him substantial supplemental benefits. However, plaintiffs employer appealed that award to the full Commission, and plaintiff therefore had *784 not yet actually received those supplemental Virginia Act benefits as of the date of oral argument before this court on the instant motion. Shortly after oral argument, during which the relevance of plaintiffs receipt of Virginia Act benefits under the Virginia Supreme Court's analysis in Mizenko was discussed in some detail, plaintiff entered into a Joint Motion and Stipulations with his employer before the Commission to vacate the Deputy Commissioner's award. The Commission accepted the Joint Motion and Stipulations, vacated the Deputy Commissioner's award, and dismissed both the appeal and plaintiffs underlying claim for benefits, without prejudice, on January 26, 2010.
These facts show that this is not a case in which plaintiff merely filed paperwork with his employer after being injured that resulted in him unwittingly receiving benefits under the Virginia Act instead of, or in addition to, the Longshore Act. Rather, this is a case in which plaintiff, after having already received benefits under the Longshore Act, made the affirmative decision to avail himself of additional benefits available under the Virginia Act, and retained counsel to do so. "Thus, the balance struck by the Virginia Act, in providing compensation to workers, in return for which immunity is afforded to defined employers," is "implicated in this case." Id. Defendant argues that "[t]he Commonwealth has a substantial interest in application of its workers' compensation statute, in applying the Virginia Act uniformly, and in protecting and providing compensation to its injured citizens." Rebuttal Brief in Support of Defendant's Motion for Summary Judgment ("Rebuttal") at 3.[6]
Moreover, the court also notes that notwithstanding the Virginia Supreme Court's characterization of the plaintiffs "substantive admiralty right against" the defendant as being "a compelling federal aspect" in its balancingMizenko, 419 S.E.2d at 642-43this court could conceivably have reached the opposite result using the Mizenko balancing test. Such a result would have been supported both by Mizenko's subsequent discussion of the fact that the plaintiff there was not receiving benefits under the Virginia Act, as well as the Eleventh Circuit's comment that it is recognized in the context of federal general maritime law "that uniformity simply for the sake of uniformity serves no inherent good." Brockington, 903 F.2d at 1531. On the strength of those authorities, this court could have concluded that plaintiffs opportunistic efforts in this case to "have it both ways," so to speaki.e., seeking to avail himself of supplemental state workers' compensation benefits under the Virginia Act while also filing a claim in this court that is expressly prohibited by the exclusivity provision of the very statute under which he seeks to recover those supplemental benefitsran afoul of Virginia's strong state interest in the application of its own workers' compensation laws. On that basis, this court could have granted defendant's motion for summary judgment.
F. Other Arguments, State Interests, and Factual Considerations
Turning to other possible considerations, it is at least arguable that the Virginia Act's exclusivity provision, applied in the manner suggested by the Virginia *785 Supreme Court in Mizenko, would not in all cases thwart the federal interest in the uniform availability of a general maritime tort claim to injured maritime workers. Had plaintiff, like the plaintiffs in Garvin, Ward, and Mizenko, sought compensation only under the Longshore Act, and not under the Virginia Act, there would appear to have been no question that plaintiff could pursue his general maritime tort claim against defendant notwithstanding the exclusivity provision of the Virginia Act. In other words, the Virginia Act would in no way foreclose the availability of a federal maritime tort claim to plaintiff until plaintiff himself elected to subject himself to the Virginia Act's exclusivity provision by affirmatively availing himself of its benefits. Such a mode of analysis might not implicate federalism and Supremacy Clause concerns so much as questions of the limits of contract, release, and waiver: i.e., whether an injured worker may contract effectively to waive his right to bring a federal maritime tort claim in exchange for access to supplemental state disability benefits. But see, e.g., Calbeck v. Travelers Ins. Co., 370 U.S. 114, 131, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962) (holding that acceptance of payments under the Louisiana State Compensation Act "does not constitute an election of the remedy under state law precluding recovery under the Longshoremen's Act").
On the other hand, it is not necessarily clear from the text of the Virginia Act's exclusivity provision that its applicability is predicated upon actually seeking or receiving benefits under other provisions of the Virginia Act. See Va.Code § 65.2-307 ("The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee... .") (emphasis added). Indeed, the dissent in Mizenko argued in this connection that the plaintiff there "presumptively accepted the [Virginia Act]'s provisions when he undertook employment with Abacus." Mizenko, 419 S.E.2d at 652 (Lacy, J., dissenting). The dissent further noted that the United States Supreme Court had previously characterized Oregon's workers' compensation statute as a " `contract,' non-maritime in nature," that "define[d] the rights between the parties without contemplation of the general system of maritime law." Id. (discussing Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 475-76, 42 S.Ct. 157, 66 L.Ed. 321 (1922)). Under such an interpretation, plaintiff was bound by the exclusivity provision of the Virginia Act from the time of his initial employment by Tecnico, and not as the result of any quid pro quo transaction occurring at the time he was injured, or when he first sought supplemental benefits under the Virginia Act for those injuries. Consequently, if the exclusivity provision were given effect in this manner, it arguably would operate to preclude plaintiffs federal maritime tort claim[7]regardless of whether plaintiff actually sought to avail himself of benefits under the Virginia Act, rendering the specter raised by *786 the Virginia Supreme Court in Mizenko i.e., injured workers affirmatively seeking benefits under the Virginia Act while simultaneously flouting its exclusivity provision, as plaintiff sought to do in this caseentirely irrelevant, as a legal matter, to the analysis.
Turning to another consideration in this case, the court notes the Virginia Supreme Court's reference in Mizenko to "the balance struck by the Virginia Act, in providing compensation to workers, in return for which immunity is afforded to defined employers." 419 S.E.2d at 644. The state's interest in enforcing its workers' compensation laws might properly be framed as an interest in honoring the bargain struck by the state government on behalf of employers and employees within the state. Indeed, as the Eleventh Circuit noted in Brockington:
To foreclose the operation of [the Georgia Workers' Compensation Act] in favor of application of maritime law would result in introduction of the very uncertainty sought to be avoided by parties who contract pursuant to the Act. Unable to anticipate all the other potential bases for recovery, an employer would avoid contracting pursuant to a statute which would hold it to its responsibilities but not provide the bargained-for protections.
903 F.2d at 1533. Accordingly, an injured worker's claims against his or her employee(s), statutory or otherwise, would clearly implicate the state's interest in enforcing the bargain struck by its workers' compensation laws, because both employer and employee are participants and reciprocal beneficiaries of that same bargain: the employer pays for workers' compensation insurance that provides benefits to its employee in case of injury. In this case, however, plaintiffs claim is against Capitol Finishes, Inc., a Maryland-based third party subcontractor that was hired by plaintiffs employer, Tecnico, which was itself a subcontractor to the general contractor, BAE Systems. Plaintiff and defendant are thus not participants in the same bargain as plaintiff and Tecnico. Unlike plaintiffs employer, the record currently before the court does not appear to suggest that defendant was paying into the Virginia workers' compensation scheme for the benefit of plaintiff. Arguably, therefore, defendant is benefitting from the broad language of the Virginia Act's exclusivity claim, to the detriment of plaintiff, despite having conferred no benefit upon plaintiff in the bargain.
G. The Appropriateness of Interlocutory Appeal of This Opinion and Order
The foregoing discussion suggests that the legal question that lies at the core of the instant motion is the subject of a Circuit split, with regard to which the Fourth Circuit has not yet explicitly taken a position. Although this court's analysis has led it to believe that the Fifth Circuit's mode of analysis is closer to both the Fourth Circuit's analysis in Garvin and what it believes to be the proper interpretation of the relevant Supreme Court jurisprudence, the court also recognizes that there appear to be principled legal arguments, as well as meaningful factual and policy considerations, that favor application of the Eleventh Circuit's mode of analysis and even, perhaps, reaching the opposite result with regard to the instant motion under that analysis. Accordingly, especially in light of the dispositive nature of the instant motion, the court believes that interlocutory appeal of this Opinion and Order to the Fourth Circuit is appropriate.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is DENIED. *787 However, the court further states, pursuant to 28 U.S.C. § 1292(b), that it is of the opinion that this Opinion and Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this Opinion and Order to the Fourth Circuit will materially advance the ultimate termination of this litigation. In anticipation of defendant's application to the Fourth Circuit for such an appeal, this matter will continue to be STAYED until further order of this court or the Fourth Circuit, and all other pending motions in this matter are hereby DENIED, without prejudice and with leave to re-file after such further order.[8]
The Clerk is REQUESTED to send a copy of this Opinion and Order to counsel of record for the parties.
It is so ORDERED.
NOTES
[1] In light of the fact that defendant requested at oral argument that the court include this language from 28 U.S.C. § 1292(b) to allow for the possibility of interlocutory appeal if it denied the instant motion, the court anticipates that defendant will make application to the Fourth Circuit for such an appeal within ten days after the entry of this Opinion and Order. Should defendant choose not to make such an application, this court will address the stay and the status of any pending motions in another Order after the period for such an application has elapsed.
[2] It appears that this voluntary dismissal rendered moot the motion filed jointly by defendant and third-party defendant W.M. Barr & Co, Inc. for an extension of time to file responsive pleadings.
[3] There does not appear to be any dispute in this case that plaintiff's alleged injuries occurred on the navigable waters of the United States, or that the ship repair activities that allegedly caused plaintiff's injuries had a significant relationship to traditional maritime activity. See Mizenko, 419 S.E.2d at 640. Accordingly, it appears undisputed that plaintiff's claim is properly considered a federal maritime tort arising within the jurisdiction of admiralty.
[4] It should be noted, however, that at the time the Virginia Supreme Court decided Mizenko, the Eleventh Circuit's decision in Brockington was less than two years old, and had been denied a writ of certiorari to the United States Supreme Court.
[5] Plaintiff's counsel claimed at oral argument that the Virginia Supreme Court never actually reached this issue in Mizenko, and that this language was merely dicta. Regardless of whether the Virginia Supreme Court's comments in this regard retain any legal significance under the approach adopted herein, this court disagrees that those comments were merely dicta. Instead, as noted above, they appear to have been the explicit basis for the Virginia Supreme Court's determination that the state interest in Mizenko was minimal. See 419 S.E.2d at 644. In other words, it was the absence of any Virginia Act benefits being paid to the plaintiff that led the Virginia Supreme Court to characterize the state interests implicated in that case as minimal.
[6] The court is utterly mystified by defendant's citation of Stadter v. Siperko, 52 Va.App. 81, 661 S.E.2d 494, 498 (2008), for this proposition. Stadter deals with the standards for granting non-parents and non-custodial parents visitation rights to a child, and does not appear to be even remotely relevant to the issues involved in this case. However, Brockington, which is also cited by plaintiff in this connection, clearly supports this proposition. See 903 F.2d at 1531-33. Garvin also acknowledged the history of Congressional deference to such interests. See 787 F.2d at 915-18: see also Mizenko, 419 S.E.2d at 644.
[7] Indeed, the language of the Virginia Act's exclusivity provision is arguably broad enough to be read as purporting to preclude not only tort claims, but even the receipt of benefits under the Longshore Acta reading that would place the Virginia Act in direct opposition to the express purposes of the Longshore Act and, thus, be clearly invalid under the Supremacy Clause. But see, e.g., Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Comp. Programs, U.S. Dep't of Labor, 583 F.2d 1273, 1277-78 (4th Cir.1978) (holding that an injured worker's initial "election" to seek state compensation does not implicate the exclusivity provision to preclude the worker from later seeking compensation under the Longshore Act).
[8] As noted above, defendant's voluntary dismissal of its third-party complaint against W.M. Barr & Co., Inc. pursuant to Rule 41(a)(1)(A)(i) on January 13, 2010 rendered moot the joint motion by defendant and the third-party defendant for an extension of time to file responsive pleadings.
| {
"pile_set_name": "FreeLaw"
} |
815 F.2d 517
125 L.R.R.M. (BNA) 2332, 55 USLW 2656,107 Lab.Cas. P 10,074
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.EASTERN CONNECTICUT HEALTH SERVICES, INC., d/b/a New LondonConvalescent Home, Respondent.New England Health Care Employees Union, District 1199,National Union of Hospital and Health CareEmployees, AFL-CIO, Intervenor.
No. 1018, Docket 87-4004.
United States Court of Appeals,Second Circuit.
Argued March 24, 1987.Decided April 8, 1987.
Barbara A. Atkin (Michael David Fox, of counsel, Rosemary M. Collyer, John E. Higgins, Jr., Robert E. Allens, Elliott Moore, Washington, D.C., on the brief), for petitioner.
Michael R. Miller (Kunkel & Miller, Sarasota, Fla., of counsel), for respondent.
Miriam L. Gafni (Freedman & Lorry, Philadelphia, Pa., of counsel), for intervenor.
Before KAUFMAN, PIERCE and PRATT, Circuit Judges.
PER CURIAM:
1
The National Labor Relations Board petitions for enforcement of its supplemental order dated September 30, 1986 requiring respondent Eastern Connecticut Health Services, Inc., owner of a nursing home in New London, Connecticut (the "employer"), to bargain with the entity now known as New England Health Care Employees Union, District 1199, National Union of Hospital and Health Care Employees, AFL-CIO (the "union").
2
While the employer's defenses to the petition are numerous, each of them is plainly lacking in merit under settled precedent. Certainly, the employer has adduced no reasons which would suffice for us to overturn the "wide degree of discretion" that the Board enjoys in resolving representation matters. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Semco Printing Center, Inc., 721 F.2d 886, 892 (2d Cir.1983).
3
At the time of the certification election, the union was affiliated with the AFL-CIO through the Retail, Wholesale, and Department Store Union and the nursing home was owned by a predecessor employer. Subsequently, the union changed its affiliation and is now affiliated with the AFL-CIO directly. The employer argues that as a result of this change there must be a new certification election.
4
Under the standards set forth by the Supreme Court in NLRB v. Financial Institution Employees Local 1182, 475 U.S. 192, 106 S.Ct. 1007, 89 L.Ed.2d 151 (1986) ("Sea-First"), the employer's contention must be analyzed in two parts. First, there must be a finding that the union's new affiliation "substantially change[d] a certified union's relationship with the employees it represents." If so, the second inquiry is whether "it is unclear whether a majority of employees continue to support the reorganized union," id., 106 S.Ct. at 1013. In this case, the Board's detailed findings of fact following a hearing amply warrant its conclusion that the first part of this test has not been met here.
5
In any event, the facts alleged by the employer do not suffice to raise a substantial question as to the second part of the test. The employer complains that non-members of the union were not permitted to vote on the organizational changes. A union may properly limit voting on such questions to its members, Sea-First, 106 S.Ct. at 1014, 1017, and the fact that this may disenfranchise some of the employees of the bargaining unit is of no consequence; those employees were free to join the union if they wished to participate in its internal affairs.
6
Similarly, since the affiliation decision was primarily an internal matter for the union, id., 106 S.Ct. at 1015-16, no question of representation is raised by the union's decision not to require unit-by-unit approval of the changes, or its delegation of parts of the process to its executive board. Neither these union procedures, nor any of the claimed irregularities in the way in which the referendum on the new affiliation was conducted, resulted in a denial of the essential elements of due process. Indeed, the record supports the finding of the Board that the union affirmatively sought to insure that all eligible workers wishing to vote had the opportunity to do so.
7
The employer's next series of claims concerns its contention that "unusual circumstances", in the form of alleged union misconduct, exist here and suffice to rebut the ordinary presumption that a union retains majority support for a year following certification. See Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 178, 99 L.Ed. 125 (1954); Glomac Plastics, Inc. v. NLRB, 592 F.2d 94, 98 n. 3 (2d Cir.1979). Particularly since the Board is entitled to view such claims with skepticism when made by employers rather than employees, see Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 490 (2d Cir.1975), the instances of misconduct alleged by the employer--the brief occupation of an administrative office, and a single instance of assertedly illegal picketing--do not rise to the level of egregiousness which would warrant us in concluding that the Board abused its discretion in requiring the employer to bargain with the union.
8
The employer's claim that there was such abuse is based on its contention that the instances of claimed union misconduct cost the union its majority support. Even if true, that allegation would not establish "unusual circumstances" justifying a refusal to bargain. See NLRB v. Lee Office Equipment, 572 F.2d 704, 706-07 (9th Cir.1978).
9
The employer next makes several procedural attacks on the Board proceedings. None have merit. The Board's decision to deny the employer intervention in the administrative proceedings while it was still only a prospective purchaser of the nursing home at issue was well within the Board's authority.
10
Similarly, there was no abuse of discretion in holding that the employer was bound by a stipulation as to the appropriate bargaining unit entered into by its predecessor in interest. The bargaining obligations of successor employers are well established, see NLRB v. Cablevision Systems Development Co., 671 F.2d 737, 739 (2d Cir.1982), and the employer's duties under an agreement voluntarily entered into by its predecessor are in no way diminished because the predecessor might arguably have litigated the matter successfully or because the employer assertedly could do so now. Accordingly, the Board was not required to provide an articulation of why the bargaining unit stipulated to by the employer's predecessor met the standards laid down in contested cases.
11
Having examined each of the employer's contentions, and finding all of them to be meritless, we hold that the Board is entitled to enforcement of its supplemental order.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 14, 2016 Decided July 19, 2016
No. 15-5051
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE
FOR UNITED STATES ATTORNEYS AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00269)
Yaakov M. Roth argued the cause for appellant. With
him on the briefs were Kerri L. Ruttenberg and Julia Fong
Sheketoff.
Jason W. Burge, Alysson L. Mills, and Jesse C. Stewart
were on the brief for amici curiae Sixty-three law professors
in support of appellant.
John D. Cline was on the brief for amici curiae American
Civil Liberties Union, et al. in support of appellant.
1
Timothy P. O'Toole and Addy Schmitt were on the brief
for amici curiae The Constitution Project and The Innocence
Project in support of appellant.
Lewis Yelin argued the cause for appellees. With him on
the brief were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Vincent H. Cohen, Jr., Acting U.S.
Attorney, and Leonard Schaitman, Attorney.
Before: SRINIVASAN, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
Concurring opinion filed by Senior Circuit Judge
SENTELLE, with whom Senior Circuit Judge EDWARDS joins.
SRINIVASAN, Circuit Judge: The National Association of
Criminal Defense Lawyers submitted a request under the
Freedom of Information Act to obtain an internal Department
of Justice publication known as the Federal Criminal
Discovery Blue Book. The Blue Book is a manual created by
the Department to guide federal prosecutors in the practice of
discovery in criminal prosecutions. It contains information
and advice for prosecutors about conducting discovery in their
cases, including guidance about the government’s various
obligations to provide discovery to defendants.
The Department refused to disclose the Blue Book,
invoking the Freedom of Information Act’s Exemption 5,
which exempts from disclosure certain agency records that
would be privileged from discovery in a lawsuit with the
agency. The Department maintained that the Blue Book fell
within the attorney work-product privilege, and therefore
Exemption 5, because it was prepared by (and for) attorneys
2
in anticipation of litigation. The district court agreed that the
Blue Book is privileged attorney work product and thus is
exempt from disclosure. We reach the same conclusion.
I.
A.
The Freedom of Information Act (FOIA) provides that
government agencies must make agency records available to
citizens upon request, subject to nine enumerated exemptions.
5 U.S.C. § 552. “Congress intended FOIA to permit access to
official information long shielded unnecessarily from public
view.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)
(internal citations and quotation marks omitted). The
statutory exemptions, accordingly, “are explicitly made
exclusive and must be narrowly construed.” Id. (internal
citations and quotation marks omitted).
Under Exemption 5, agencies may withhold “inter-
agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption
5 covers records that would be “normally privileged in the
civil discovery context.” NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 149 (1975). The exemption allows the government
to withhold records from FOIA disclosure under at least three
privileges: the deliberative-process privilege, the attorney-
client privilege, and the attorney work-product privilege.
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854,
862 (D.C. Cir. 1980). This case solely involves the last of
those privileges, the attorney work-product privilege.
3
B.
On December 20, 2012, the National Association of
Criminal Defense Lawyers (NACDL) sent a FOIA request to
the Department of Justice (DOJ) seeking disclosure of the
Blue Book. DOJ processed the request under the direction of
Susan Gerson, Assistant Director in the FOIA/Privacy Act
Staff of the Executive Office for U.S. Attorneys. After
reviewing the Blue Book and consulting with DOJ staff
familiar with the Book’s inception and drafting, Gerson
determined that it should be withheld in full pursuant to FOIA
Exemptions 5 and 7(E). (The latter exemption, which we
have no occasion to reach, exempts certain types of “records
or information compiled for law enforcement purposes.” 5
U.S.C. § 552(b)(7)(E).) On February 28, 2013, Gerson sent
NACDL a form letter invoking both exemptions and denying
its request.
After unsuccessfully appealing the denial, NACDL
brought this FOIA suit in the district court seeking to compel
DOJ to release the Blue Book. The parties filed cross-
motions for summary judgment, and DOJ again invoked
Exemptions 5 and 7(E) in support of its decision to withhold
the Blue Book in full. Because the parties disagreed about
how to characterize the Blue Book’s contents, the district
court reviewed the Book in camera before rendering its
decision on the merits of DOJ’s decision to withhold.
Following its in camera review of the Blue Book, the
district court granted DOJ’s motion for summary judgment.
Nat’l Ass’n of Criminal Def. Lawyers v. Exec. Office for U.S.
Attorneys, 75 F. Supp. 3d 552 (D.D.C. 2014). The court
found that DOJ was not required to disclose any portion of the
Blue Book, holding that the Book in its entirety is protected as
attorney work product. Id. at 557, 561. Because the court
4
found that the Blue Book could be withheld in full under
Exemption 5, it did not address the applicability of Exemption
7(E). Id. at 556.
II.
NACDL appeals, arguing that the claimed FOIA
exemptions are inapplicable and the Blue Book therefore
should be disclosed in full. We review the district court’s
decision de novo. See Judicial Watch, Inc. v. Dep’t of Justice,
432 F.3d 366, 369 (D.C. Cir. 2005). In doing so, we must
“ascertain whether the agency has sustained its burden of
demonstrating that the documents requested are . . . exempt
from disclosure under the FOIA.” Assassination Archives &
Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)
(quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080
(D.C. Cir. 1998)) (quotation marks omitted). When making
that determination, we rely centrally on the agency’s
descriptions of the content of the relevant documents as set
forth in its Vaughn index and accompanying affidavits. See
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d
242, 251 (D.C. Cir. 1977).
We find that the Blue Book falls within the attorney
work-product privilege and therefore is exempt from
disclosure under FOIA’s Exemption 5. As a result, we, like
the district court, have no need to address the applicability of
Exemption 7(E).
A.
Courts have long recognized that materials prepared by
one’s attorney in anticipation of litigation are generally
privileged from discovery by one’s adversary. See Hickman
v. Taylor, 329 U.S. 495, 510-12 (1947); In re Sealed Case,
5
146 F.3d 881, 884 (D.C. Cir. 1998). The attorney work-
product privilege applies in both civil and criminal cases. See
United States v. Nobles, 422 U.S. 225, 236-38 (1975); Fed. R.
Civ. P. 26(b)(3); Fed. R. Crim. P. 16(a)(2), 16(b)(2)(A).
The privilege aims primarily to protect “the integrity of
the adversary trial process itself.” Jordan v. Dep’t of Justice,
591 F.2d 753, 775 (D.C. Cir. 1978) (en banc). It does so by
“provid[ing] a working attorney with a ‘zone of privacy’
within which to think, plan, weigh facts and evidence,
candidly evaluate a client’s case, and prepare legal theories.”
Coastal States, 617 F.2d at 864. Without the privilege, “much
of what is now put down in writing would remain unwritten”
because “[a]n attorney’s thoughts, heretofore inviolate, would
not be his own.” Hickman, 329 U.S. at 511. Protecting
attorney work product from disclosure prevents attorneys
from litigating “on wits borrowed from the adversary.” Id. at
516 (Jackson, J., concurring).
“Congress had the attorney’s work-product privilege
specifically in mind when it adopted Exemption 5” to the
FOIA. Sears, 421 U.S. at 154. Not every document created
by a government lawyer, however, qualifies for the privilege
(and thus, the exemption). “[I]f an agency were entitled to
withhold any document prepared by any person in the
Government with a law degree simply because litigation
might someday occur, the policies of the FOIA would be
largely defeated.” Coastal States, 617 F.2d at 865. To avoid
that result, we have long required a case-specific
determination that a particular document in fact was prepared
in anticipation of litigation before applying the privilege to
government records. See, e.g., Senate of Puerto Rico v. U.S.
Dep’t of Justice, 823 F.2d 574, 586-87 (D.C. Cir. 1987).
6
In ascertaining whether a document was prepared in
anticipation of litigation, we have applied a “‘because of’ test,
asking whether, in light of the nature of the document and the
factual situation in the particular case, the document can fairly
be said to have been prepared or obtained because of the
prospect of litigation.” United States v. Deloitte LLP, 610
F.3d 129, 137 (D.C. Cir. 2010) (quoting Sealed Case, 146
F.3d at 884). For that standard to be met, the attorney who
created the document must have “had a subjective belief that
litigation was a real possibility,” and that subjective belief
must have been “objectively reasonable.” Sealed Case, 146
F.3d at 884.
B.
We find those standards satisfied with regard to the Blue
Book. DOJ explains that “[t]he Blue Book was designed to
provide advice regarding the law and practice of federal
prosecutors’ discovery disclosure obligations and to serve as a
litigation manual to be used by all DOJ prosecutors and
paralegals” in their cases. Goldsmith First Decl. ¶ 5 (J.A. 93).
As a result, DOJ says, the Blue Book was “created in
anticipation of reasonably foreseeable litigation,” namely,
federal criminal prosecutions. Gerson Decl. ¶ 17 (J.A. 84);
see id. ¶ 20 (J.A. 85). We agree.
The Blue Book “describ[es] the nature and scope of
[federal prosecutors’] discovery obligations under applicable
constitutional provisions, caselaw, and the Federal Rules of
Criminal Procedure.” Gerson Decl. ¶ 20 (J.A. 85). It consists
of “nine chapters, written by DOJ prosecutors with expertise
in a wide range of discovery-related topics,” addressing
subjects including: Federal Rule of Criminal Procedure 16,
regarding discovery; the government’s obligations to disclose
exculpatory information under Brady v. Maryland, 373 U.S.
7
83 (1963) and Giglio v. United States, 405 U.S. 150 (1972);
disclosure duties arising from the Jencks Act, 18 U.S.C. §
3500; items protected from disclosure; and the use of
protective orders and ex parte and in camera submissions in
discovery. Goldsmith First Decl. ¶ 5 (J.A. 93).
According to DOJ, the Blue Book is not a “neutral
analysis of the law” but rather “contain[s] confidential legal
analysis and strategies to support the Government’s
investigations and prosecutions.” Gerson Decl. ¶ 21 (J.A.
86). In contrast with publicly-available documents such as
the United States Attorneys’ Manual, which set out statements
of agency policy, the Blue Book is an internal manual
containing litigation strategies. Goldsmith Second Decl. ¶ 7
(J.A. 103). It gives “practical ‘how-to’ advice,” Goldsmith
First Decl. ¶ 5 (J.A. 94), to federal prosecutors about “how to
handle different scenarios and problems,” Gerson Decl. ¶ 20
(J.A. 85). It discusses “the types of challenges [prosecutors]
may encounter in the course of prosecutions and potential
responses and approaches.” Goldsmith Second Decl. ¶ 8 (J.A.
103); accord Goldsmith First Decl. ¶ 14 (J.A. 99). The Book
“contemplates facts that may arise in judicial proceedings”
and evaluates “how a court would likely consider those facts.”
Goldsmith First Decl. ¶ 6 (J.A. 94).
DOJ thus argues that disclosing the Blue Book would
“essentially provide a road map to the strategies federal
prosecutors employ in criminal cases.” Id. It contends that
disclosure would afford anyone who wanted to read the Blue
Book (including opposing counsel) “unprecedented insight
into the thought processes of federal prosecutors.” Id. ¶ 12
(J.A. 98). Disclosure thus would “undermine the criminal
trial process by revealing the internal legal decision-making,
strategies, procedures, and opinions critical to the
Department’s handling of federal prosecutions.” Id. ¶ 13
8
(J.A. 98). In addition, it would “severely hamper the
adversarial process[,] as DOJ attorneys would no longer feel
free to memorialize critical thoughts on litigation strategies
for fear that the information might be disclosed to their
adversaries to the detriment [of] the government’s current and
future litigating positions.” Id.
Taking into account the nature, content, and function of
the Blue Book as described in DOJ’s affidavits, we believe it
“can fairly be said to have been prepared . . . because of the
prospect of litigation.” Deloitte, 610 F.3d at 137 (quoting
Sealed Case, 146 F.3d at 884). Our in camera review of the
Blue Book confirms that the affidavits accurately describe the
Book and its contents. The Book therefore qualifies for the
work-product privilege.
C.
NACDL does not dispute that the Blue Book was
prepared for use in litigation. It claims that the Blue Book
nonetheless falls outside the work-product privilege for three
reasons: (i) the Blue Book was not prepared in anticipation of
litigating a specific claim or case; (ii) the Blue Book
principally serves a non-adversarial function; and (iii) the
Blue Book’s content resembles that of a neutral treatise. We
find each of those arguments unpersuasive.
1.
NACDL’s principal contention is that the Blue Book
cannot qualify for the work-product privilege because, even if
it was created in contemplation of litigation generally, it was
not prepared in anticipation of litigating a specific claim or
case. NACDL reads our decisions to establish a specific-
claim requirement for government documents to qualify for
9
work-product protection, at least in the context of
government-initiated litigation such as criminal prosecutions.
NACDL misunderstands our decisions.
As an initial matter, we have long held that there is no
general, overarching requirement that a governmental
document can fall within the work-product privilege only if
prepared in anticipation of litigating a specific claim. See
Sealed Case, 146 F.3d at 885; Schiller v. NLRB, 964 F.2d
1205, 1208 (D.C. Cir. 1992); Delaney, Migdail & Young,
Chartered v. IRS, 826 F.2d 124, 126-28 (D.C. Cir. 1987). In
Schiller, for instance, we held that the privilege covered
NLRB documents providing direction and advice to agency
lawyers on the litigation of cases under the Equal Access to
Justice Act. 964 F.2d at 1208. We specifically rejected the
contention “that the work-product doctrine requires that the
documents be created in anticipation of litigation over a
specific claim.” Id. “Exemption 5 extends to documents
prepared in anticipation of foreseeable litigation,” we
explained, “even if no specific claim is contemplated.” Id.
(citing Delaney, 826 F.2d at 127).
That is not to say that anticipation (or non-anticipation)
of a specific claim can never have any relevance when
assessing the applicability of the work-product privilege. The
contemplation of specific claims can help differentiate
situations in which lawyers have litigation adequately in mind
from those in which lawyers are not (yet) sufficiently
anticipating litigation.
Our decision in Coastal States Gas Corporation v.
Department of Energy, 617 F.2d 854, is illustrative. Coastal
States involved memoranda drafted by Department of Energy
lawyers to assist Department auditors in interpreting agency
regulations. The auditors used the memoranda when auditing
10
firms for compliance with agency regulations. Those audits
were not considered “investigations,” because, “at that point,
no charge had been made nor was a violation necessarily
suspected.” Id. at 858. But if an auditor subsequently
determined that a firm had committed a violation, the audit
could turn into a more targeted investigation and, in some
cases, give rise to litigation. See id. at 858-60.
We denied application of the work-product privilege to
the memoranda in Coastal States, finding “no indication . . .
that there was even the dimmest expectation of litigation
when the[] documents were drafted.” Id. at 865. We said that
“[t]o argue that every audit is potentially the subject of
litigation is to go too far.” Id. The Department thus had
“failed to carry its burden of establishing that litigation was
fairly foreseeable at the time the memoranda were prepared.”
Id. We distinguished the memoranda from documents
“prepared with a specific claim supported by concrete facts
which would likely lead to litigation in mind.” Id.
Accordingly, in a later case involving documents prepared “in
the course of an investigation” that “had reached the stage . . .
at which [the agency] was comparing the accumulated facts to
the caselaw and evaluating” specific legal theories to pursue,
we held that litigation was “sufficiently ‘in mind’ for [the]
document[s] to qualify as attorney work product.” SafeCard
Servs. Inc. v. SEC, 926 F.2d 1197, 1203 (D.C. Cir. 1991).
In both Coastal States and SafeCard, we used language
suggesting that, for the documents in question to be prepared
with an enforcement action sufficiently on the horizon to
implicate the work-product privilege, the agency’s
investigation must have advanced to the point that the
documents’ authors contemplated bringing “a specific claim
supported by concrete facts.” SafeCard, 926 F.2d at 1202
(quoting Coastal States, 617 F.2d at 865). In neither case,
11
however, did we establish any across-the-board specific-claim
prerequisite for application of the privilege. Indeed, as noted,
we later specifically disavowed any such specific-claim
requirement in Schiller, 964 F.2d at 1208.
Rather, the point of the specific-claim inquiry in Coastal
States and SafeCard was to differentiate between audits as to
which enforcement litigation might well never take place,
Coastal States, 617 F.2d at 865, and active investigations with
an enforcement action foreseeably at hand, SafeCard, 926
F.2d at 1202-03. In those cases, looking at whether agency
attorneys were contemplating a specific claim proved useful
in assessing the likelihood that litigation would ever come to
pass. At an early stage, such as a neutral compliance audit
with no specific claim (or even any violation) in mind, there is
insufficient reason to anticipate litigation. But for documents
created at a later stage in which the agency contemplates
bringing a specific action, disclosure might reveal the
government’s “legal theories,” “weigh[ing of] facts and
evidence,” or “candid[] evaluat[ion]” of a case. See Coastal
States, 617 F.2d at 864.
We face a very different situation here. A specific-claim
requirement would make little sense in the context of the Blue
Book. Unlike the audit documents at issue in Coastal
States—which might well never be used (or be of use) in
litigation—the Blue Book is entirely about the conduct of
litigation. It is aimed directly for use in (and will inevitably
be used in) litigating cases. Its disclosure therefore risks
revealing DOJ’s litigation strategies and legal theories
regardless of whether it was prepared with a specific claim in
mind. It was prepared with the litigation of all charges and
all cases in mind. The presence or absence of a specific claim
or transaction might be a helpful consideration in the context
of an agency compliance inquiry with no enforcement action
12
or litigation necessarily on the horizon. But it is an unhelpful
consideration here given that the Blue Book undoubtedly was
created in anticipation of—and for use in—foreseeable
litigation, i.e., federal criminal prosecutions.
NACDL relies heavily on our decision in Sealed Case,
146 F.3d 881. There, we considered the applicability of the
work-product privilege to a lawyer’s notes and other
documents prepared in anticipation of a possible action
brought against the lawyer’s client. We found the documents
were covered by the privilege even though no specific claim
against the client had yet emerged. See id. at 885-86. In
discussing the significance of the fact that no specific claim
had arisen by the time of the documents’ creation, we drew a
distinction between two types of cases. First, we pointed to
Coastal States and SafeCard in observing that, in prior cases
in which “the documents at issue had been prepared by
government lawyers in connection with active investigations
of potential wrongdoing,” we had required anticipation of a
specific claim in order to invoke the work-product privilege.
Id. at 885. By contrast, in cases like Schiller, in which
lawyers acted “not as prosecutors or investigators of
suspected wrongdoers, but as legal advisors protecting their
agency clients from the possibility of future litigation,” we
rejected the need for a specific claim to implicate the
privilege. Id. at 885-86. The facts in Sealed Case fell into the
latter category.
This case, according to NACDL, fits within the former
category because it involves lawyers acting “as prosecutors.”
While that may be so, Sealed Case did not hold that, in any
case involving documents prepared by or for prosecutors, the
work-product privilege could apply only if the documents had
been created in anticipation of a specific claim. Instead,
because Sealed Case did not involve documents created by
13
prosecutors, we expressly declined to address whether “the
Coastal States/SafeCard specific claim test has any continued
vitality when government lawyers act as prosecutors or
investigators of suspected wrongdoers.” Id. at 885. And as
we have explained, the existence (or non-existence) of a
specific claim proved salient in those cases as a means of
identifying whether documents had been prepared at a time
when litigation was sufficiently in mind—i.e., whether
“litigation was a real possibility.” Id. at 884. But in the case
of a document like the Blue Book, prepared entirely for use in
wholly foreseeable (even inevitable) litigation, there is no
need to apply any specific-claim test to conclude that
litigation is sufficiently likely to warrant application of the
work-product privilege.
2.
NACDL next argues that the Blue Book falls outside the
work-product privilege because it aims to advance a non-
adversarial function—namely, education and training of
prosecutors. NACDL advocates drawing a line between
(unprivileged) documents that convey agency policy and
(potentially privileged) documents that help the agency
prevail in court. Whatever the validity of such a line, it would
not advance NACDL’s cause because the Blue Book was
designed to help federal prosecutors prevail in court on behalf
of the government.
We have long recognized that the applicability of the
work-product privilege can turn in significant measure on a
document’s function. See Delaney, 826 F.2d at 127 (citing
Coastal States, 617 F.2d at 858). And we agree with NACDL
that materials serving no cognizable adversarial function, such
as policy manuals, generally would not constitute work
14
product. See Coastal States, 617 F.2d at 863. The Blue
Book, however, does serve an adversarial function.
The Book does not merely pertain to the subject of
litigation in the abstract. Instead it addresses how attorneys
on one side of an adversarial dispute—federal prosecutors—
should conduct litigation. It describes how to respond to the
other side’s arguments, which cases to cite, and what material
to turn over and when to do so, among numerous other
practical and strategic considerations. The Blue Book, for
instance, “describes the types of claims defense counsel have
raised and could raise regarding different discovery issues, or
the tactics they could employ in litigation . . . and the
arguments prosecutors can make to respond to these claims.”
Gerson Decl. ¶ 21 (J.A. 85).
In any event, insofar as the Blue Book might also serve
non-adversarial functions, “a document can contain protected
work-product material even though it serves multiple
purposes, so long as the protected material was prepared
because of the prospect of litigation.” Deloitte, 610 F.3d at
138. As a result, “material generated in anticipation of
litigation may also be used for ordinary business purposes
without losing its protected status.” Id. In that light, any
educational or training function the Blue Book might serve
would not negate the document’s adversarial use in (and its
preparation in anticipation of) litigation. The Blue Book
therefore falls within the work-product privilege.
3.
NACDL also argues that a neutral recitation of legal rules
or case law in the manner of a treatise, as opposed to a
description of a lawyer’s litigation strategy or theory of the
case, fails to qualify as attorney work product. That
15
distinction is of no assistance to NACDL because the latter
category more fairly describes the Blue Book than does the
former.
In Schiller, we found the work-product privilege
applicable to “lawyer-prepared documents containing tips and
advice for litigating cases under the Equal Access to Justice
Act.” Sealed Case, 146 F.3d at 885 (describing Schiller).
Much like the documents at issue in Schiller, the Blue Book
contains case-handling tips and tactical advice for litigating
discovery matters in criminal prosecutions: “in addition to
legal analysis,” the Blue Book includes “a comprehensive set
of strategic considerations, procedures, and practical advice
for conducting criminal prosecutions,” much of which is
“interspersed within the legal analysis.” Goldsmith First
Decl. ¶ 9 (J.A. 96).
As a result, unlike “neutral” accounts of government
policy like the United States Attorneys’ Manual, the Blue
Book imparts litigation strategy to government lawyers: it
conveys “advice on criminal discovery practices, potential
strategic and logistical concerns, interpretations of law and
risk assessments in light of relevant legal authority, . . .
practice notes, techniques, procedures, and legal strategies
that in-the-field prosecutors may and do employ during the
course of criminal proceedings.” Id. ¶ 6 (J.A. 94). As with
the tips and advice in Schiller, the Blue Book thus consists of
exactly the “sort of information—prepared in anticipation of
litigation—[which] falls within the attorney work-product
privilege and, therefore, within [E]xemption 5.” Schiller, 964
F.2d at 1208.
To be sure, the Blue Book contains certain information—
such as “compilations of cases,” Gerson Decl. ¶ 21 (J.A.
85)—that may come with a seeming air of neutrality if
16
considered in strict isolation. But disclosure of the publicly-
available information a lawyer has decided to include in a
litigation guide—such as citations of (or specific quotations
from) particular judicial decisions and other legal sources—
would tend to reveal the lawyer’s thoughts about which
authorities are important and for which purposes. The Blue
Book, for instance, does not include lists of cases in a
vacuum. It instead “offers compilations of cases that
prosecutors can use to support different arguments” in
litigation as well as “[c]ases illustrating potential pitfalls that
prosecutors should avoid” when conducting discovery. Id.
(J.A. 85-86). That sort of information squarely implicates the
work-product privilege.
III.
Finally, NACDL argues that, even if certain portions of
the Blue Book qualify as work product and thus are exempt
from disclosure, DOJ must disclose any non-exempt portions.
NACDL relies on the FOIA’s direction to agencies to disclose
any non-exempt “portion” of a record containing exempt
material if the non-exempt parts are “reasonably segregable.”
5 U.S.C. § 552(b). And as we have long held, “[t]he focus of
the FOIA is information, not documents, and an agency
cannot justify withholding an entire document simply by
showing that it contains some exempt material.” Mead Data,
566 F.2d at 260.
As the district court noted, however, an agency need not
segregate and disclose non-exempt material if a record is
“fully protected” as work product. Nat’l Ass’n of Criminal
Def. Lawyers, 75 F. Supp. 3d at 557 (quoting Judicial Watch,
432 F.3d at 371). In such cases, because the entire record is
exempt from disclosure, there are no non-exempt portions left
to segregate. The district court found that the Blue Book is
17
fully protected as work product and thus did not undertake a
separate segregability analysis. Id. at 561.
In cases involving voluminous or lengthy work-product
records—the Blue Book is more than 500 pages in length—
we think it generally preferable for courts to make at least a
preliminary assessment of the feasibility of segregating non-
exempt material. When reviewing such records in camera,
courts may look at “what proportion of the information in a
document [appears to be] non-exempt and how that material
is dispersed throughout the document.” Mead Data, 566 F.2d
at 261. Material is more likely to be reasonably segregable in
longer documents with “logically divisible sections.” See id.
at 261 n.54. In such cases, courts presumably would examine
each section to determine if it might be amenable to
segregation and disclosure. Such a determination also may be
possible on the basis of the agency’s Vaughn index and
affidavits, if those materials suggest that a lengthy work-
product record likely contains segregable material.
We recognize that “FOIA places the burden of justifying
nondisclosure on the agency seeking to withhold information,
and this burden cannot be shifted to the courts by sweeping,
generalized claims of exemption for documents submitted for
in camera inspection.” Id. at 260. But when an agency has
maintained all along that a record is “fully protected” as work
product, its Vaughn index and affidavits may not address
segregability. In such cases, it may be that portions of the
record which otherwise appear to contain neutral information
are encompassed within (and integrated with) protected work
product and thus there is no portion that is “reasonably
segregable.” But there may also be cases in which a record
containing some amount of work product also contains—or at
least appears to contain—segregrable, non-exempt material
subject to disclosure. In that circumstance, a court
18
presumably would require the agency to provide “a
description of which parts of the withheld documents are non-
exempt . . . and either disclose them or offer adequate
justification for continuing to withhold them.” Id.
In this case, having reviewed the Blue Book in camera,
we find that its strategic advice—which is unquestionably
work product—is integrated in the document to an extent that
the Book is not amenable to reasonable segregation of any
non-exempt material.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
SENTELLE, Senior Circuit Judge, with whom Senior Circuit
Judge EDWARDS joins, concurring: I concur in the decision of
the majority, not because I believe it to be the correct result, but
because I am compelled to do so by precedent. Boiling the
controversy down to its essence, the answer to one two-part
question determines the result: Does the attorney work-product
privilege protected by FOIA Exemption 5 protect only
information prepared in anticipation of litigating a specific
claim; and if not, does it extend far enough to encompass a text
prepared for the education of attorneys who may in the future be
generally involved in litigation? The majority, I believe
correctly, opines that this circuit has answered that question in
Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), and has
further restated the answer in In re Sealed Case, 146 F.3d 881,
884 (D.C. Cir. 1998). In this case, we consider a manual
prepared for internal use of the Department of Justice
concerning the important legal area of criminal litigation
discovery. The manual was prepared not for use in a specific
piece of litigation, but for the whole universe of cases that might
be encountered by the Department’s criminal attorneys.
Likewise, in Schiller, the relevant documents at issue in a FOIA
proceeding were prepared to provide tips for the handling of
questions that might come up in Equal Access to Justice Act
litigation. 964 F.2d at 1208. In Schiller, as reiterated in In re
Sealed Case, we held that the attorney work-product privilege
adopted in Exemption 5 of the FOIA protected the disputed
document. Id. at 1208-09. Although I think the normative and
perhaps ethical implications of extending this protection to a
prosecutorial manual are sufficient to give pause, I cannot see
any legal difference between this case and Schiller which would
permit us to reach a different result.
We are bound by the prior decisions of this circuit as much
as those of the Supreme Court. See, e.g., Sierra Club v. Jackson,
2
648 F.3d 848, 854 (D.C. Cir. 2011) (“It is fixed law that ‘this
Court is bound to follow circuit precedent until it is overruled
either by an en banc court or the Supreme Court.’” (quoting
Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005)). Schiller,
as restated in Sealed Case, held that we found the work-product
privilege applicable to “lawyer-prepared documents containing
tips and advice for litigating cases under the Equal Access to
Justice Act.” Sealed Case, 146 F.3d at 885 (analyzing and
restating Schiller). Unless and until the Supreme Court or an en
banc decision by this court overrules or modifies Schiller, we
must enter decisions consistent with that holding. I hope to see
the day when such a reversal or modification occurs, for more
than one reason.
First, I believe that Schiller was wrongly decided in the first
instance. As the majority notes, the purpose in the privilege
adopted into Exemption 5 is “to protect ‘the integrity of the
adversary trial process itself.’” Maj. Op. at 5 (quoting Jordan v.
Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en banc)).
That purpose is served by allowing a litigating attorney “a ‘zone
of privacy’ within which to think, plan, weigh facts and
evidence . . . .” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 864 (D.C. Cir. 1980). That goal is accomplished
by an exemption which protects from disclosure the litigation
decisions and related information in the handling of specific
litigation. I grant that it is possible to interpret Exemption 5
broadly; that does not mean it is appropriate to do so. The
exemptions to FOIA are “explicitly made exclusive . . . and must
be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S.
562, 565 (2011) (quoting FBI v. Abramson, 456 U.S. 615, 630
(1982) (other citations and internal quotations omitted)).
Furthermore, applying the broad construction of Schiller to
the case before us is inconsistent both with the statutory purpose
of FOIA and the longstanding values of justice in the United
3
States. The purpose of the Freedom of Information Act is to
serve “the citizens’ right to be informed about what their
government is up to.” U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal
quotation marks omitted). There is no area in which it is more
important for the citizens to know what their government is up
to than the activity of the Department of Justice in criminally
investigating and prosecuting the people. The government
certainly has the power to claim a FOIA exemption to hide its
internal manuals describing how it goes about that awesome
undertaking. But if it chooses to exercise that power, then the
people might be forgiven for cynically asking “what is it you
have to hide?”
Reflecting on the consistency of Schiller’s interpretation of
Exemption 5 with the original statutory purposes, one may
recall, as does the majority, that the exemption was to protect
attorneys in litigation as under the privilege traditionally
afforded in litigation itself. I cannot help but wonder if an
insurance defense attorney had written a secret treatise passed
around among his bar on how to defend—for
example—defective product cases, would we, if that treatise
became relevant in specific litigation, afford the protection of
the attorney-client privilege to a document not prepared for a
particular client or a particular case, but only to educate
attorneys of a particular sort in the litigation of a particular kind
of case? I think not. But even if we did, I do not think this
would justify stretching the FOIA exemption to the point of
protecting the departmental tactics and strategies in criminal
prosecution from discovery by the citizenry. I cannot help but
recall the words of Justice Sutherland for the Supreme Court in
Berger v. United States:
The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
4
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor–indeed, he
should do so. But, while he may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means
to bring about a just one.
295 U.S. 78, 88 (1935).
It is often said that justice must not only be done, it must be
seen to be done. Likewise, the conduct with the U.S. Attorney
must not only be above board, it must be seen to be above board.
If the people cannot see it at all, then they cannot see it to be
appropriate, or more is the pity, to be inappropriate. I hope that
we shall, in spite of Schiller, someday see the day when the
people can see the operations of their Department of Justice.
In short, I join the judgment of the majority, not because I
want to, but because I have to.
| {
"pile_set_name": "FreeLaw"
} |
773 F.2d 1044
120 L.R.R.M. (BNA) 2788, 54 USLW 2212,103 Lab.Cas. P 11,579
WASHINGTON STATE NURSES ASSOCIATION, Plaintiff-Appellee,v.WASHINGTON STATE HOSPITAL COMMISSION, et al., Defendants-Appellants.
No. 84-4113, 84-4131.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 9, 1985.Decided Oct. 8, 1985.
Richard H. Robblee, Hafer, Cassidy & Price, Seattle, Wash., for plaintiff-appellee.
Chip Holcomb and Stephen Klasinski, Asst. Attys. Gen., Olympia, Wash., for defendants-appellants.
Appeal from the United States District Court for the Western District of Washington.
Before GOODWIN, SCHROEDER, and BEEZER, Circuit Judges.
SCHROEDER, Circuit Judge.
1
This litigation illustrates the continuing tension between the interest of labor in improving wages and the interest of state governments in containing rising hospital rates. The State of Washington has granted the Washington State Hospital Commission the power to determine the maximum rates which each hospital in the state can charge patients. The Washington State Nurses Association, a labor organization representing nurses, filed this action against the Commission for an injunction against certain Commission practices which the Association claimed interfered with its state and federally protected rights to bargain for wage increases.
2
The district court granted an injunction against the Commission's "involvement" in collective bargaining. The injunction was based on a stipulated record reflecting certain budget review practices of the Commission and certain public pronouncements of its members. We reverse. We conclude that the budget review practices and public pronouncements, while undoubtedly intended to encourage hospitals and unions to minimize cost increases, could not control the terms of any particular collective bargaining agreement, and did not interfere in any impermissible way with the exercise of collective bargaining rights protected by section 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157. No conflict occurs with federal law which would justify a holding that the state's activities are preempted by federal law within the standards we apply. See Brown v. Hotel and Restaurant Employees, --- U.S. ----, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984); Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782 (1945); Golden State Transit v. City of Los Angeles, 686 F.2d 758 (9th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 954 (1983); Massachusetts Nurses Association v. Dukakis, 726 F.2d 41 (1st Cir.1984).
3
The district court concluded that "[t]he Commission has indirectly, but purposely controlled the amount by which salaries for registered nurses represented by the Association could be increased." Although the court's findings did not identify specific practices to which it was referring, the underlying facts are not materially in dispute.1 The record reflects that the principal objectionable practice is the Commission's use of "guidelines" to measure the reasonableness of wage increases as a component of the overall costs which the Commission permits to be reflected in rates. Pursuant to the authority given the Commission to review a hospital's financial status, the Commission requires hospitals to submit their proposed budgets for review. The Commission then breaks down the information submitted into various categories; one such category is total salary and wages. Under the guidelines, a comparison is made where the overall wage increases amount to more than five percent over the preceding year. In that event, the hospital's overall costs are compared to increases of hospitals of comparable size in the same geographic area, and if the increase in question exceeds that rate, the Commission requires a justification for the increase. It appears that on several occasions the Commission did not find the justification satisfactory and refused to recognize projected wage increases as part of the hospital's total projected costs to be offset by increased rate revenue.
4
In assessing the degree to which these practices actually affect collective bargaining negotiations, we believe it is significant that the guidelines measure total salaries and wages as one cost category, without regard to collective bargaining units or even classifications of employees. Neither nurses nor unions receive any special consideration. It is equally significant that even when a wage increase is "disapproved," the Commission cannot prevent the hospital from increasing wages. The Commission's only control is over the revenue which the hospital can receive from rates. So far as the Commission is concerned, the hospitals are free to contract to pay wages at any level so long as they are able to meet their obligations, either by obtaining revenue from sources other than rates, or by reducing costs in other areas.
5
The Commission's budget guideline practices with respect to wages are mirrored in the public statements made by Commission members, which the district court also found objectionable. For example, the Commission's Chairman stated: "During the current period of economic recession and high unemployment the Commission must promote budget constraints, cost awareness, prudent buying practices, conservationism in granting salary and wage adjustment and postponement or scaling down of capital expenditures."
6
The court's findings in relevant part were that:By statements at public hearings, the Commission used its position to influence hospitals to negotiate wage settlements with little or no wage increase. Commission members repeatedly told hospital officials that wage increases exceeding 5% would have to be "justified." Commission members on at least two occasions, without dissent or disclaimers, have cautioned hospitals against setting higher than desired wage increases with the Association and have urged hospital negotiators to emphasize the Commission's salary and wage policies in upcoming negotiations with the Association.
7
In assessing the affect of these oral statements on bargaining, as in evaluating the Commission's practices with respect to the guidelines, it is significant that the Commission's legal authority is limited to setting rates. It can neither actually limit overall costs nor impose wage ceilings. Given the fact that wages comprise sixty percent of hospitals' costs, any statements by public officials charged with responsibility for trying to reduce costs inevitably would have to encompass wages. It does not appear, however, that the Commission regularly singled out particular collective bargaining negotiations for comment. The statements that were made cannot be viewed as any more controlling over the bargaining process than the guideline practices.
8
The issue we must decide is whether the Commission's practices and statements on wage increases acted as a restraint on the exercise of collective bargaining rights protected by federal law. The two leading circuit court decisions dealing with state efforts to deal with rising costs and rates in certain industries are Massachusetts Nurses Association v. Dukakis, 726 F.2d 41 (1st Cir.1984), and Amalgamated Transit Union, Division 819 v. Byrne, 568 F.2d 1025 (3d Cir.1977) (en banc). In Dukakis, the First Circuit held that a state statute aimed at restraining increases in hospital costs did not impermissibly interfere with collective bargaining rights of the nurses union. The court concluded, in a careful opinion, that federal labor policy does not preempt a state statute which regulates hospital costs by imposing an overall limit on what hospitals can collect for patient care.
9
The aim of the Washington statute is similar to that of the Massachusetts law considered in Dukakis. It authorizes the Commission to set the "types and classes of charges" for hospitals and to review hospitals' financial records in order to establish the maximum rates each hospital can charge patients. See Wash.Rev.Code Secs. 70.39.150, 70.39.160. We agree with the First Circuit in Dukakis, that a statute authorizing the control of rates which "is oriented toward neither labor-management issues in general nor wages in particular," 726 F.2d at 44, does not impermissibly interfere with collective bargaining.
10
The plaintiff in this case does not claim that the state statute itself conflicts with federal labor policy. It argues that the budget review practices and public statements of the Commission constitute such an interference with bargaining that they conflict with federal labor law. The most instructive and influential opinions on related, but, as we shall see, more difficult issues, are those of the Third Circuit, sitting en banc, in Byrne. There, the governor of New Jersey threatened to take away state subsidies of private transportation companies in the event that the employers and the unions agreed to a proposed uncapped cost of living adjustment clause in pending negotiations. 568 F.2d at 1026-27. A majority of the Third Circuit held that even such a direct threat did not impermissibly interfere with the collective bargaining process. The minority, in strong dissents, would have held that the threat was an impermissible interference in the negotiations. Judge Aldisert's dissent made a distinction, which the court in Dukakis quoted with at least some approval, and which describes a key distinction between this case and Byrne. That is the distinction between a threat of withdrawing a subsidy and a communication to all negotiating parties of the overall level of financing which the state will permit:[T]here exists a critical difference between a state communicating to all affected parties the extent of finances it intends to grant for carriers' operations and a state communicating that it will not continue its subsidization if the carriers agree with the unions to retain uncapped cost of living clauses in their employment contracts. The former communication presumably does not constitute interference with negotiations over wages and working conditions, as it is not a state attempt "to influence the substantive terms of collective bargaining agreements."
11
Byrne, 568 F.2d at 1035 (Aldisert, J., dissenting); quoted in Dukakis, 726 F.2d at 44.
12
We conclude that the practices and statements upon which the district court's injunction was based fall short of the kind of control over collective bargaining which might impermissibly interfere with the exercise of rights under section 7. Under the standards that have developed in this area, it is clear that state efforts to cap cost increases by limiting the hospitals' revenue is a proper province of state regulation. Dukakis, 726 F.2d 41; Byrne, 568 F.2d 1025. The Washington State Hospital Commission's wage guidelines give the hospitals no less flexibility in managing their overall costs than they would have if the Commission simply imposed a percentage cap on rate increases. Indeed, given the possibility for overriding the guidelines by justifying increases which exceed them, the hospitals may have even greater flexibility under the present system than they would have in the event of a revenue cap.
13
The efforts of the Commission, both in its use of guidelines and in its urgings to reduce hospital costs, do not impose sanctions on either the union or the employer with respect to collective bargaining negotiations. Cf. Brown, --- U.S. at ----, 104 S.Ct. at 3192, 82 L.Ed.2d at 392 (White, J., dissenting); Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782 (1945). This case is far removed from Local 24, International Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), where a state enacted an antitrust law that struck down a provision governing pay for truck owners who drove their own rigs. The Court held that such invalidation of a specific term had an impermissible impact upon the actual terms of bargaining, an area expressly left unregulated by Congress. Id. at 296, 79 S.Ct. at 305, 3 L.Ed.2d at 322. Here, the Commission has not invalidated an actual negotiated scale, but has simply set guidelines for total wage costs. Wage increases greater than the guidelines are not unlawful.
14
The conduct of the Commission may have an indirect influence on bargaining. We observed in Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830 (9th Cir.), cert. granted, --- U.S. ----, 105 S.Ct. 3475, 87 L.Ed.2d 611 (1985), that "[i]n any regulated industry, a myriad of governmental decisions from rate-setting to establishment of safety standards are bound to affect labor relations in that industry." Id. at 833. The government actions in this case had far less actual effect on any particular negotiations than the government decision in that case to withhold a franchise to do business until a specific labor dispute was resolved. The record before us shows that the Commission's policies and statements were aimed principally at encouraging the reduction of overall wages as well as other costs. We hold that they did not prevent or significantly inhibit the exercise of collective bargaining rights protected by the NLRA.
15
For similar reasons, we must reject the argument that there was a conflict between the Commission's conduct and State laws guaranteeing collective bargaining rights similar to those guaranteed by federal law. See Allen v. Seattle Police Officers Guild, 100 Wash.2d 361, 670 P.2d 246, 252 (1983).
16
The judgment of the district court is REVERSED.
1
To the extent that the district court's characterization of the Commission's conduct as purposeful control over collective bargaining negotiations may be deemed a finding of fact, it is not supported by the stipulated record and is clearly erroneous. See Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)
| {
"pile_set_name": "FreeLaw"
} |
43 F.3d 669
Hamiltonv.Runyon*
NO. 94-10363
United States Court of Appeals,Fifth Circuit.
Dec 15, 1994
Appeal From: N.D.Tex., No. 3:93-CV-1363-H
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
| {
"pile_set_name": "FreeLaw"
} |
429 F.Supp. 131 (1976)
In the Matter of Patricia Ann MARTINDALE, Bankrupt,
Betty McMILLIN, Trustee, Plaintiff,
v.
PHOENIX TELCO FEDERAL CREDIT UNION, Defendant.
No. BK-75-2397-T.
United States District Court, W. D. Oklahoma.
November 23, 1976.
William A. Vassar, III, Oklahoma City, Okl., for bankrupt.
B. J. Brockett, Oklahoma City, Okl., for trustee.
Richard W. Freeman, Oklahoma City, Okl., for defendant.
ORDER
RALPH G. THOMPSON, District Judge.
The above entitled cause comes before this Court upon the appeal of Phoenix Telco Federal Credit Union (Phoenix), appellant herein, from an order of the Bankruptcy Court. Phoenix appeals from the finding of the Court that Betty McMillin (McMillin), appellee herein and bankruptcy trustee of the estate of Patricia Ann Martindale (Martindale), has a prior and superior interest in the 1973 GMC ½ ton pickup, serial number TCY1143J508221, to the claim of Phoenix by reason of its failure to reperfect its security interest in said vehicle in Oklahoma.
There is no disagreement between the parties with respect to the pertinent facts. The bankrupt and her husband executed a combined financing statement and security interest in Phoenix, Arizona, where they were residing on or about July 26, 1973, thereby granting a security interest to Phoenix in the subject vehicle. Phoenix then perfected its security interest in accordance with the law of Arizona by filing a copy of the security instrument and application for a certificate of title with the Vehicle Division so that a certificate of title was thereafter issued to the Martindales showing on its face the lien of Phoenix. Arizona law requires that the security instrument be maintained in the Vehicle Division files until the security interest is discharged. A non-negotiable memorandum of title is issued to the owner with the creditor's lien noted on it while the original certificate of title is maintained in the Vehicle Division files along with the security instrument until the security interest is discharged whereupon it is delivered to the owner. Arizona is a "title state" inasmuch as security interests are perfected in the manner described above.
Sometime thereafter, the Martindales moved their residence from Arizona to Texas, *132 which is also a "title state", and Phoenix again perfected its security interest. No filing of security instruments is required for perfection in Texas, but an application for a title is submitted for a vehicle encumbered by a security interest, and two titles are issued. One is designated "original" and the second as "duplicate original", and the original is given to the secured party and the duplicate original is given to the owner. The duplicate is not good for transferring ownership of the vehicle; but upon satisfaction of the security interest, the original is delivered to the owner by the secured party.
Thereafter, the Martindales moved to Oklahoma and brought with them the vehicle in question. In accordance with Oklahoma law, 47 O.S. 1971 § 22.12, which requires registration of a vehicle owned by a nonresident who enters Oklahoma and remains for a period of sixty days from the date of entry, the Martindales prepared an application for registration along with an application for a certificate of title which is required by 47 O.S. 1971 § 23.3. The State of Oklahoma received the application for a certificate of title, showing on its face the lien of Phoenix, and prepared the certificate of title but retained it in its file pending receipt of a negotiable certificate of title from Texas. On this same date, Oklahoma vehicle registration license plates were issued to the Martindales. The certificate of title held by the State of Oklahoma was never delivered to the Martindales.
The petition in bankruptcy was filed December 9, 1975, by Mrs. Martindale. McMillin filed her complaint on March 22, 1976, alleging a superior interest to that of Phoenix in the said vehicle by reason of the failure of Phoenix to comply with the laws of the State of Oklahoma. Oklahoma is a "filing state" rather than a "title state", and perfection is accomplished by the filing of security instruments in specified locales. Phoenix never filed the required instruments in Oklahoma, and the Bankruptcy Court therefore held that McMillin held a superior interest in the vehicle.
The central question herein is whether or not the certificate of title prepared by the State of Oklahoma but held pending receipt of the original Texas certificate of title was issued. If the Oklahoma certificate of title was not issued, then the security interest of Phoenix which was perfected in Arizona and Texas would remain perfected in accordance with 12A O.S. 1971 § 9-103(4) which provides as follows:
"Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate."
Therefore, the perfection of the security interest of Phoenix would be controlled by the law of Arizona or more probably Texas. However, if the Oklahoma certificate of title was issued, then Phoenix would have been required to perfect its security interest in accordance with Oklahoma law, which requires filing pursuant to 12A O.S. 1971 § 9-401, which was not done herein. As indicated in 4 Anderson, Uniform Commercial Code, Section 9-103:23, at page 64:
"The underlying rationale of Code § 9-103(4) is that there shall be only one title certificate for an automobile, that originally issued if it is still in existence, but the certificate of state # 2 when such certificate is issued shall be the controlling system. It would be impractical to charge the public with notice of notations in prior cancelled certificates or applications, which, though still extant, had been issued in foreign unknown states. Consequently, once a certificate is issued in state # 2, it is the law of that state which determines whether there is a perfected security interest in the motor vehicle and the creditor must comply with the law of state # 2 in order to obtain perfection."
It is the holding of the Court that the Oklahoma certificate of title was prepared but not issued to the Martindales. In so *133 holding, the Court is cognizant of 47 O.S. 1971 § 22.4(d) which holds as follows:
"Where the applicant has satisfactorily shown to the Commission that he owns the vehicle sought to be registered, but is unable to produce documentary evidence of his title, the Commission may in its discretion issue temporary plates only. Such temporary license plates are to be issued only from the Motor Vehicle Division of the Commission at its central office in Oklahoma City. In such instances the Commission shall indicate on the receipt given the applicant the reason for not issuing a Certificate of Title. It shall still be the duty of the applicant to take all necessary steps immediately to obtain his Oklahoma Certificate of Title and it shall be unlawful for him to sell said vehicle until such title has been obtained in his name."
Therefore, it is quite apparent that the Oklahoma certificate of title was withheld and not issued in accordance with this subsection.
McMillin contends in the alternative that if the Court finds that the certificate of title was not issued, then indeed Arizona law applies with respect to the perfection of the security interest by Phoenix. McMillin argues that Arizona law as reflected in Arrow Ford, Inc. v. Western Landscape Construction Co., 23 Ariz.App. 281, 532 P.2d 553 (1975), does not support Phoenix.
The Court questions whether or not Arizona law would apply in any event inasmuch as a Texas certificate of title was issued subsequently to the Arizona title, and therefore Texas law would be applicable. However, in that Arizona and Texas law are similar in this regard, the Court will consider the argument of McMillin.
First, McMillin has not cited any pertinent Arizona statutory law which would invalidate the perfection that was accomplished in Arizona. Instead, McMillin cites Arrow Ford, Inc. supra, in support of her position. The fact situation in Arrow Ford, Inc. involves the perfection of a security interest in a vehicle which was removed from a "filing state" (Oklahoma) to a "title state" (Arizona), the exact opposite of the case at bar. Inasmuch as the comparable Arizona statute of 12A O.S. 1971 § 9-103(4) only applies to the situation where an encumbered vehicle enters from a "title state", the decision in Arrow Ford, Inc. is clearly distinguishable.
It is uncontradicted that the security interest of Phoenix was duly perfected in Arizona and Texas, and the Court has held that an Oklahoma certificate of title was not issued in Oklahoma. Thus, the accomplished perfection in Arizona or Texas would continue in Oklahoma pursuant to 12A O.S. § 9-103(4). Therefore, it is the holding of the Court that the security interest of Phoenix is superior to that of McMillin; and, accordingly, the order of the Bankruptcy Court in regard to the vehicle in question is reversed.
It is so ordered this 23rd day of November, 1976.
| {
"pile_set_name": "FreeLaw"
} |
167 Mich. App. 611 (1988)
423 N.W.2d 289
ZIELINSKI
v.
SZOKOLA
Docket No. 94476.
Michigan Court of Appeals.
Decided April 4, 1988.
Morrison & Moss (by Gregory W. Finley), for plaintiffs.
Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Simeon R. Orlowski), for defendants Szokola.
Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. (by William J. Leidel), for defendant City of Livonia.
*614 Before: J.H. GILLIS, P.J., and GRIBBS and J.C. TIMMS,[*] JJ.
J.C. TIMMS, J.
In this slip and fall case, plaintiffs appeal as of right from orders granting summary disposition in favor of the City of Livonia pursuant to MCR 2.116(C)(7) and (10) and in favor of defendants Szokola and Julius Barber Shop pursuant to MCR 2.116(C)(8) and (10). We affirm.
On Monday, March 1, 1982, at 8:00 A.M., plaintiff Anthony J. Zielinski had his hair cut at defendant Julius Szokola's barber shop by defendant Irving Szokola. Plaintiff was Szokola's first customer of the day. The weather was clear and cold with a light dusting of snow covering the ground. As plaintiff was walking to the parking lot after his haircut, he slipped and fell on the public sidewalk. He suffered a broken ankle which required surgery to correct. He was on crutches for four or five months and was off work for approximately seven months. As a result, he instituted the instant action.
At his discovery deposition, plaintiff testified that he did not see any defects in the sidewalk at the time of his fall. Upon closer examination, he did observe a two-foot-square patch of ice on the sidewalk under the snow.
In his discovery deposition, Szokola described the condition of the sidewalk as pitted. While there was no expert testimony regarding the cause of the pitting, Szokola believed it resulted from his salting of the sidewalk over the twenty-nine years he had been at his business location. He described the pit holes as being at a maximum of a couple inches in diameter and one-half-inch deep. He recognized that ice sometimes formed in the pits. According to him, at the time of plaintiff's accident, *615 ice had formed on the smooth part of the sidewalk as well as in the pitted portion. He attributed the ice to the melting of ice and snow from a nearby snowbank and refreezing of the resultant water. He testified that he had not shoveled, swept, nor salted the sidewalk for several days prior to plaintiff's fall.
I
The general rule with regard to the liability of a municipality or property owner for injuries sustained by a licensee as a result of icy conditions is stated in a doctrine known as the natural accumulation doctrine. The doctrine provides that neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location. Hampton v Master Products, Inc, 84 Mich App 767; 270 NW2d 514 (1978); Taylor v Saxton, 133 Mich App 302; 349 NW2d 165 (1984).
The natural accumulation doctrine is subject to two exceptions. The first exception provides that liability to a licensee may attach where the municipality or property owner has taken affirmative action to alter the natural accumulation of ice and snow and, in doing so, increases the hazard of travel for the public. Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976); Mendyk v Michigan Employment Security Comm, 94 Mich App 425; 288 NW2d 643 (1979); Hampton, supra. To establish liability under this doctrine, a plaintiff must prove that the defendant's act of removing ice and snow introduced a new element of danger not previously present. Morton v Goldberg, 166 Mich App 366; 420 NW2d 207 (1988). Weider v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958). Thus, for example, in Hampton, supra, the Village *616 of Yale was deemed liable for injuries suffered by a pedestrian who slipped and fell while trying to walk over a snowdrift that had resulted from road plowing undertaken by the village two days earlier. This Court correctly concluded that the snowbank was an unnatural accumulation.
Just as a brief aside, Mendyk, supra, represents an example in which the unnatural accumulation exception was carried to an extreme. There, the plaintiff slipped and fell on a public sidewalk abutting an MESC building and suffered injuries. The sidewalk had been twice shoveled and salted. The Court of Claims rejected the plaintiff's argument that she had fallen on an unnatural accumulation of ice and entered a verdict of no cause of action. This Court reversed and remanded for a new trial, holding that the MESC's act of salting the sidewalk could have caused an unnatural accumulation of ice. As the Court explained:
In the instant case the sidewalk abutting the MESC office had twice been shoveled and salted on the morning of plaintiff's slip and fall. It is the presence of this salt on the snow that plaintiff claims caused it to melt and freeze on the sidewalk. If this is true, then the action of the MESC in salting the sidewalk increased the plaintiff's hazard from one involving her trudging through snow to one involving her walking on ice. It is clear that her chances of injury from the latter are greater than her chances of injury from the former. [94 Mich App 435.]
While the panel in Mendyk did not grant a judgment in favor of the plaintiff, but instead only held that the issue of the MESC's liability should be submitted to the factfinder, the impact of the case is nonetheless staggering. Implicit in the Court's *617 ruling is the holding that all slip and fall cases caused by icy conditions resulting from salting should go to the factfinder. While liability may not always be found, the defendant must nonetheless suffer the cost of defending the action.[1]
Fortunately, this Court recently tempered the holding of Mendyk. In Morton, supra, this Court reversed an order denying the defendant drug store's motion for a directed verdict. This Court held that, in order to recover on a slip and fall case, the plaintiff had to prove more than just that defendant had salted earlier in the day and the plaintiff had slipped on ice. To recover, the plaintiff had to establish a causal connection between the defendant's actions and an increased hazard on the sidewalk. This Court felt that the defendant's actions in salting and clearing the snow decreased the danger to pedestrians. The Court politely ignored the holding in Mendyk, noting that the opinion did not compel a different result.
The second exception to the natural accumulation doctrine provides that liability may arise where a party takes affirmative steps to alter the condition of the sidewalk itself, which in turn causes an unnatural or artificial accumulation of ice on the sidewalk. Buffa v Dyck, 137 Mich App 679, 682-683; 358 NW2d 918 (1984).
*618 II
The natural accumulation doctrine applies only to injuries suffered by a licensee. It does not apply to situations involving an invitee injured on private property. With respect to an invitee, the landowner has an obligation to take reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury. Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975). The specific standard of care, i.e., whether salt or sand should be used in addition to clearing the snow, is a fact question for the jury. Clink v Steiner, 162 Mich App 551; 413 NW2d 45 (1987).
In Clink, a newspaper delivery person was injured when he slipped and fell on the defendant's driveway at 4:00 A.M. while delivering the morning Detroit Free Press. While the driveway had been cleared of snow, the runoff from thawing snow had frozen on the driveway. The plaintiff sued and the circuit judge granted the defendant's motion for summary disposition, MCR 2.116(C)(10).
On appeal, this Court reversed, ruling that, although the defendant had cleared the driveway, a jury question existed as to whether the defendant should have used salt or sand in addition to shoveling. 162 Mich App 551, 556-557. In so ruling, the panel relied heavily on Lundy v Groty, 141 Mich App 757; 367 NW2d 448 (1985). There, an invitee, the defendant's cleaning person, slipped and fell on a driveway that had not been cleared of snow. It was uncontested that a snow storm had begun the previous night and that snow was still falling when the plaintiff arrived at noon.
We find it curious that the Clink panel, in holding that a jury question existed as to whether the defendant should have sanded or salted his *619 driveway in addition to having shoveled it, would rely so extensively on a case where the plaintiff slipped during a snow storm on a driveway that had not yet been cleared. While the holding in Clink might support the result in Lundy, the converse does not appear to be true. Such is the nature of the cases in this area of law.
The panel's holding in Lundy is curious in its own right. The panel reversed the circuit judge's order granting the defendant's motion for summary disposition. In doing so, it ruled:
In the instant case, defendant would owe plaintiff a duty because she should know that snow was falling on her property and that it would create a dangerous condition for the elderly plaintiff. The general standard of care would require defendant to shovel, salt, sand or otherwise remove the snow from the driveway.
... The specific standard of care in the instant case would be the reasonableness of defendant's actions regarding the snow. Whether it was reasonable to wait for the snow to stop falling before she shoveled or whether salt or sand should have been spread in the interim is a question for the jury. [141 Mich App 760-761.]
The Lundy holding is curious because the panel relied almost exclusively on Quinlivan, supra, where our Supreme Court merely held that liability might arise for a supermarket's failure to clean its parking lot for several days following a snowfall. We believe that this Court has strayed significantly from the reasonable holding in Quinlivan.[2]
*620 III
The instant case presents a hybrid situation between the natural accumulation doctrine and the higher standard of Quinlivan, as it involves a business invitee who was injured on a public sidewalk abutting the business. This precise fact circumstance was addressed in Elam v Marine, 116 Mich App 140; 321 NW2d 870 (1982), where the plaintiff sustained injuries after falling on a public sidewalk outside a business. This Court affirmed the grant of summary judgment, ruling that property owners have no obligation to maintain public sidewalks free from ice and snow even where the owner is a business invitor and the person injured is an invitee.[3] See also, Morton v Goldberg, supra.
We believe Elam and Morton are controlling in this case. Since plaintiff was injured on a public sidewalk, he can only recover if he can establish an exception to the natural accumulation doctrine.
IV
Relying on Mendyk, supra, plaintiff argues that the ice on which he slipped resulted from defendant's past salting practices. However, plaintiff has a new twist to his argument. He is not claiming that the ice formed from the refreezing of melted snow.[4] Instead, he claims the ice on which he slipped resulted from the accumulation of water in the pits in the sidewalk, which in turn were *621 formed by defendant Szokola's salting of the sidewalk.[5]Buffa v Dyck, supra.
The issue thus becomes twofold: (1) whether the accumulation of ice in one-half-inch-deep pit holes is a natural or unnatural accumulation and (2) whether one-half-inch-deep pit holes in a sidewalk constitute a failure on the part of the City of Livonia to maintain the sidewalk in reasonable repair so it is reasonably safe and convenient for public travel.
We conclude that the accumulation of ice in the pit holes of the sidewalk resulting from the refreezing of melted ice and snow is an accumulation from natural causes. We further hold that defendant Szokola would not face liability even had the ice accumulated as a result of the refreezing of a salted surface. We do not view the application of salt to an icy surface as the introduction of a new hazard. Weider, supra. Salting does not create a hazard, instead it only alleviates, albeit temporarily, a hazard that already existed. For this reason, liability should not attach merely because the powerful forces of nature reassert themselves and a salted surface refreezes.
We further hold as a matter of law that the City of Livonia was not under a duty to replace the sidewalk merely because ice accumulated in the one-half-inch-deep depressions that had formed. Any other holding would place an impossible burden on the already overburdened municipalities of this state. We do not now decide at which point a *622 municipality would face liability for depressions in which ice has accumulated, "for it is here where we enter into the realms of reasonable men differing, and of `tape measure justice.'" Ingram v Saginaw, 1 Mich App 36; 133 NW2d 224 (1965).
We note, however, that in a different context our Supreme Court has adopted a two-inch rule for injuries caused by holes in sidewalks. The rule states that, as a matter of law, a municipality is not liable for injuries to a pedestrian caused by a hole in a sidewalk that is less than two inches in depth. Ingram v Saginaw, 380 Mich 547; 158 NW2d 447 (1968). Presumably, the accumulation of ice in a hole exceeding two inches in depth would give rise to liability against the municipality. Thus, for example, in Pappas v Bay City, 17 Mich App 745; 170 NW2d 306 (1969), Judge HOLBROOK dissenting, this Court ruled that a depression in a sidewalk measuring 2 3/8 inches below the curb and in which water accumulated and froze might give rise to liability against the city. Today we hold only that, as a matter of law, the accumulation of ice in a depression measuring one-half-inch deep in a public sidewalk is not an unreasonably dangerous condition which would subject the municipality to the possibility of liability.
The grant of summary disposition pursuant to MCR 2.116(C)(10) in favor of both defendants is affirmed. Our disposition renders unnecessary the resolution of whether the trial judge's grants of summary disposition under MCR 2.116(C)(7) and (8) were improper. Defendants are entitled to costs as permitted in MCR 7.219.
Affirmed.
GRIBBS, J., concurs in the result only.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The holding of Mendyk is curious for two reasons. First, the case penalizes the homeowner or business person who uses salt. The lesson of the case is that the liability-conscious landowner or business person should never use salt to alleviate icy conditions, for salt melts snow which in turn refreezes and forms ice. And once salt is applied, the landowner or business person faces the fear that the ice that forms on the sidewalk arose from the refreezing of a salted surface rather than from natural thawing and refreezing. But see Morton v Goldberg, 166 Mich App 366; 420 NW2d 207 (1988). Second, the Mendyk panel incorrectly relies on the "invitor's rigorous duty of care owed to an invitee" as somehow being important to the case. This is nonsense. Since the plaintiff fell on public property, her status as an invitee is irrelevant. See Morton v Goldberg, supra; Elam v Marine, 116 Mich App 140; 321 NW2d 870 (1982).
[2] Apparently, the import of Clink and Lundy is that, during winter months, Michigan homeowners should cancel home delivery of their newspaper and should order the post office to halt home delivery of mail. Instead, the prudent homeowner should walk to the supermarket to buy a newspaper and to the post office for the mail so that those parties will face liability in case the homeowner falls.
[3] Interestingly, one of the cases cited to support this rule was Mendyk. Mendyk is factually similar to Elam and to the present case. Yet in Mendyk, the panel's holding was premised both on an unnatural accumulation of ice and on the higher duty owed by a business invitor to an invitee. Since the plaintiff in Mendyk slipped on a public sidewalk, we fail to see how her status as an invitee is pertinent.
[4] Defendant testified that he had not swept or salted the sidewalk prior to the accident since the sidewalk had been cleared of snow for several days prior to the accident.
[5] This case presents yet another reason why the prudent, liability-conscious homeowner or business person will never apply salt to an icy surface. If salt is applied, it may melt the snow and ice, resulting in an unnatural accumulation of ice, see Mendyk, supra, or it might damage the sidewalk, resulting in an unnatural accumulation, as in the present case. Either way, a lawsuit will have to be defended against. From the case law, one can only conclude that salt is akin to sin.
| {
"pile_set_name": "FreeLaw"
} |
398 Pa. Superior Ct. 494 (1990)
581 A.2d 239
COMMONWEALTH of Pennsylvania
v.
Lola ROCHON, Appellant.
Supreme Court of Pennsylvania.
Argued September 10, 1990.
Decided October 17, 1990.
*496 David S. Rudenstein, Philadelphia, for appellant.
Hugh T. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before ROWLEY, McEWEN and CERCONE, JJ.
CERCONE, Judge:
This is a direct appeal from a judgment of sentence entered after a judge sitting without a jury found appellant *497 guilty of aggravated assault,[1] simple assault,[2] recklessly endangering another person[3] and endangering the welfare of children.[4] For the reasons set forth below, we affirm.
The events underlying the instant appeal occurred on February 28, 1989. Appellant, Lola Rochon, was arrested because she beat her then seventeen-month old son,[5] immersed him in water sufficiently cold to cause hypothermia, and repeatedly held the child's head under water so that he could not breathe. Appellant's motion to suppress the statement she gave to the police at the time of her arrest was denied on August 7, 1989. She was subsequently found guilty at a bench trial of the offenses listed previously. After appellant's post-verdict motions were argued and denied, she was sentenced to serve a term of incarceration of between five and one-half (5 1/2) and twenty (20) years. The instant timely appeal followed in which appellant raises three questions[6] for our review:
1. Is [appellant] entitled to a new trial wherein her pre-trial motion to suppress a statement was denied, where there was evidence that at the time the statement was taken, [appellant] was three months pregnant; locked in a detention room and handcuffed for over an hour before a statement was taken; was not offered food, water or bathroom privileges and wherein the entire psychological and physical atmosphere of the interrogation would have broken the *498 will of a reasonable person and did, in fact, break the will of the [appellant] in question.
2. Is [appellant] entitled to an arrest of judgment on the charges of aggravated assault and recklessly endangering another person wherein evidence at trial merely demonstrated that the [appellant] negligently placed her son in a bathtub full of water which served to greatly reduce his body temperature.
3. Is the [appellant] entitled to a new trial wherein the verdict was against the weight of the evidence on the charges of aggravated assault and recklessly endangering another person where, the evidence demonstrated that the [appellant] negligently placed her son in a bathtub full of water which served to greatly reduce his body temperature.
We shall consider these claims seriatim.
Appellant first argues that she is entitled to a new trial because her confession was improperly admitted into evidence. The gravamen of appellant's complaint is that the physical and psychological circumstances surrounding the statement she gave to the police in which she admitted "dunking" and beating her son rendered that statement involuntary. Our supreme court has ruled that "[t]he test for determining the voluntariness of a confession and the validity of the waiver of the right to remain silent is the totality of the attending circumstances." Commonwealth v. D'Amato, 514 Pa. 471, 481, 526 A.2d 300, 305 (1987). As the court explained, appropriate areas of appellate court consideration include such factors as the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused's physical and psychological state, and "all other conditions present which may serve to drain one's powers of resistance to suggestion and undermine his self-determination." Id., citing Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). Additionally, we note that the following scope of review applies where a suppression court has made a determination adverse to a criminal defendant:
*499 When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found [sic] and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.
Commonwealth v. D'Amato, 514 Pa. at 482, 526 A.2d at 305.
The prosecution evidence is that appellant was initially placed in a detention room at the Sex Crimes Unit headquarters of the Philadelphia Police Department at 12:45 p.m. N.T. 8/7/89 at 94. The interior of the room was in the full view of a police officer. Id. at 112. Appellant was seated on a bench in the detention room with one wrist handcuffed to a bar below the bench. Id. at 115. She was interviewed shortly after 2:00 p.m., and at the time of the interview appellant was not handcuffed. Id. at 81-82. The interviewing officer testified that appellant was never struck, that she was not threatened, and that no promises or inducements were offered in exchange for her statement. Id. at 85-88. The officer recalled no requests by appellant for water, food or bathroom privileges. Id. at 109-113. The officer also testified that these would have been provided if requested.[7]Id. After appellant executed a written waiver of rights and gave a signed statement, the interview concluded at 2:45 p.m. Id. at 87.
Appellant now contends that her will was "worn away" during her two-hour wait in the detention room. Although appellant's brief states that she was shackled, the Commonwealth's evidence does not support this claim. The testimony introduced by the Commonwealth indicates that appellant *500 was handcuffed in the detention room, but that this was not the case during her interview. Id. at 82, 96. Further, the officer stated that leg shackles are used only on violent prisoners. Id. Appellant's contention that she informed the police that she was pregnant is belied by appellant's testimony that she spoke to no one after her arrest. Id. at 118. Additionally, the interviewing police officer could recall no such assertion. Id. at 88.
Although the above facts may indicate that appellant was not granted any marked degree of comfort while awaiting her interview, they do not support the conclusion that her statement was involuntarily made because of a coercive atmosphere. We cannot agree with appellant that a reasonable person's will would have been "worn away" during a less than two hour detention under such conditions. The record does not demonstrate that appellant failed to comprehend the questions she was asked when she signed the waiver form.[8] Appellant never indicated at that time that she was suffering from any physical impairment or required medical assistance; moreover she stated that she was not under the influence of alcohol or narcotic drugs. See Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988), allocatur denied, 523 Pa. 630, 564 A.2d 1259 (1989) (voluntariness of confession was supported by the evidence where, at the time defendant executed the waiver form, he understood police officers, did not indicate that he was having any problems with his physical condition or that any medical problem was bothering him, and he did not indicate that he was under the influence of any alcohol or drugs during the course of his interview).
In light of the information contained in the pre-sentence report, we find appellant's contention that she only gave her statement because of naivete regarding the investigative process to be disingenuous at best. The pre-sentence report discloses that appellant's adult criminal record includes *501 eleven arrests prior to her detention in connection with the instant case. The suppression court was free to reject appellant's characterizations of her interview as incredible, and properly did so. See Commonwealth v. McFadden, 384 Pa.Super. 444, 559 A.2d 58 (1989), allocatur denied, 524 Pa. 595, 568 A.2d 1246 (1989) (wherein the suppression court rejected appellant's testimony of intimidation and physical violence, and found the voluntariness of appellant's confession was supported by the record, the confession was properly admitted). See also Commonwealth v. D'Amato, supra (confession given after fifty hours in custody was voluntary where defendant was advised of his Miranda rights prior to making statement and accused was not mistreated while in police custody).
The second issue raised by appellant is a challenge to the sufficiency of the evidence introduced at trial with regard to the charges of aggravated assault and recklessly endangering another person.[9] It is well settled that when sufficiency of the evidence claims are raised, "an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction." Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the *502 Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, supra, 512 Pa. at 546, 517 A.2d at 1259, and that "the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Harper, supra, 485 Pa. at 576, 403 A.2d at 538.
An accused is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S.A. § 2701(a)(1). A person is guilty of recklessly endangering another person if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Id. § 2705. The Crimes Code defines "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 2301.
In the instant case, the evidence introduced at trial demonstrated that appellant became angry with her seventeen month old son for soiling his diaper. N.T. 8/7/89 at 19-31. She first struck her child with a sneaker, then with a belt and after that announced "I'm going to cool this m___r f___r off." Id. Following this remark, appellant forcibly and repeatedly immersed the little boy in water while telling him to "swim, bitch, swim." Id. at 33-35. Despite the child's struggles to escape, appellant did not stop this torture until her victim became cyanotic and turned purple from cold. Id. at 36, 63; N.T. 8/8/89 at 29. When the child was permitted to leave the bathtub, he staggered and was unable to stand up. N.T. 8/7/89 at 36-39.
*503 Dr. Schlitt, the attending emergency physician who treated the child testified that the immersion in water had drastically lowered the victim's core body temperature and rendered him hypothermic. N.T. 8/8/89 at 18-21. Despite appellant's argument to the contrary, Dr. Schlitt's testimony is quite clear that the abuse inflicted was in actuality life threatening. Id. at 35-37. Additionally, Dr. Schlitt specifically rejected appellant's theory that her son's condition was merely the result of a careless bath. Id. at 38-40, 49-50.[10]
We find appellant's claim that she was merely exercising her right to administer corporal punishment to be totally inapposite. The statute governing the corporal punishment of minor children specifically excludes conduct that may create a substantial risk of death.
The use of force upon or toward the person of another is justifiable if . . . the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.
18 Pa.C.S.A. § 509(1)(ii). Contrary to appellant's contentions, her admission of stupidity and impatience is not enough to negate the lower court's finding that she placed her child in danger of death. In light of the above outlined facts, we hold that the trial court correctly found the evidence sufficient to demonstrate the elements of both aggravated assault and recklessly endangering another person. We therefore can grant appellant no reliefon this claim.
Finally, appellant argues that she is entitled to a new trial as the verdict was against the weight of the evidence. We note initially that our scope of review for such a claim is very narrow. Commonwealth v. Hamilton, *504 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Hamilton, supra, 376 Pa.Super. at 414, 546 A.2d at 95-96. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice. Id.; Commonwealth v. Hunter, supra; Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987). See also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) (citing Commonwealth v. Nelson, 514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (under ordinary circumstances, an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the "cold record")). See also Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990) and Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990) (explaining that a challenge to the weight of the evidence is reviewable by the Superior Court). We have carefully scrutinized the entire record and have found no basis on which to grant relief to appellant on this claim.
Judgment of sentence affirmed.
NOTES
[1] 18 Pa.C.S.A. § 2702.
[2] Id. § 2701.
[3] Id. § 2705.
[4] Id. § 4304.
[5] The record indicates that the child was born July 22, 1987.
[6] Appellant has also alleged that the sentence imposed is too harsh under the circumstances of this case. This challenge to the discretionary aspects of the sentence has not been made in compliance with the pertinent procedural requirements. See 42 Pa.C.S.A. § 9781(b); Pa. R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As the Commonwealth has objected to the manner in which appellant's claim was raised, we may not consider it. See, e.g., Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).
[7] Although appellant testified that nobody offered her any food or water, she never indicated that she asked for food, water or bathroom privileges or that any such request was denied. N.T. 8/7/89 at 117-130.
[8] At trial, appellant specifically stated that she understood the form at the time she signed it. She also demonstrated her ability to read and understand written English. N.T. 8/7/89 at 124, 128.
[9] As the Commonwealth correctly points out, appellant has not questioned the sufficiency of the evidence relating to simple assault and endangering the welfare of children.
[10] The emergency room physician also testified that he found evidence consistent with a finding that the child had experienced recent physical violence. The child had fresh abrasions on the left side of his face, in particular on his left ear, his left cheek and underneath his right nostril. N.T. 8/8/89 at 30-33. The victim also displayed older evidence of trauma on his back, his rear end and on his foot. Id.
| {
"pile_set_name": "FreeLaw"
} |
20 Ill. App.3d 948 (1974)
314 N.E.2d 723
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
STANLEY DAVIS, Defendant-Appellant.
No. 57620.
Illinois Appellate Court First District (2nd Division).
June 10, 1974.
*949 Kenneth L. Gillis and Robert E. Davison, both of State Appellate Defender's Office, of Chicago, for appellant.
Bernard Carey, State's Attorney, of Chicago (James Veldman, Assistant State's Attorney, of counsel), for the People.
Judgments affirmed.
*950 Mr. JUSTICE STAMOS delivered the opinion of the court:
Defendant, Stanley Davis, was charged with the murder of Derrick Merriweather and the attempt murder of Howard Collins. (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 8-4.) A jury found him guilty of both offenses, and he was sentenced to consecutive terms of 35 to 100 years for murder and 10 to 15 years for attempt murder. On appeal defendant urges reversal of the convictions on the grounds that his convictions were based upon hearsay testimony; that a photograph of the deceased was improperly introduced into evidence; that defendant's fingerprints were obtained pursuant to an unlawful arrest, and therefore should have been excluded from evidence; and that defendant was improperly convicted and sentenced to consecutive terms for offenses which arose from the same conduct. Defendant also contends that the sentence imposed for murder is excessive.
On April 8, 1971, shortly before midnight, Howard Collins drove his mother's black Volkswagen automobile into a parking lot near 13359 South Greenwood Avenue in Chicago. Collins and his passenger, Derrick Merriweather, were seeking a friend. Thereupon a 1960 or 1961 gray Chevrolet automobile, with four persons inside, drove into the lot and blocked the only exit. All four men exited the Chevrolet; two walked up to Collins' side of the car, and the other two men walked to Merriweather's side. Collins and Merriweather remained in the car. One of the men near Collins fired a shotgun at him. Collins, although wounded, managed to escape from the car and run. As he fled from the scene, he heard more shots. Collins survived; but Merriweather was fatally wounded.
Collins identified defendant as one of his attackers. He testified at trial that he had known defendant for approximately 4 years, and that both attended Carver High School. He further testified that he recognized three of the men in the Chevrolet, and identified them as defendant, Albert Jackson and Bossey Jones. He observed defendant and Jackson holding shotguns as they arroached his car. Defendant and Jones approached Merriweather, and Jackson and another man approached Collins. Jackson fired a shot at Collins, and Collins then ran. He sought help, and a friend drove him to the emergency room of Roseland Community Hospital. There he told a police officer that defendant, Jackson and Jones had shot him.
Collins further testified that earlier on the day of the shooting he observed defendant and several other persons standing near the high school. Defendant approached Collins and asked for $5. Collins refused, and Jackson, who was with defendant, told Collins "I will kill you." Collins testified that he did not know why defendant had demanded $5. *951 On cross-examination Collins did not recall a prior statement by him that the $5 demanded by defendant was an extortion payment to a street gang. Collins also stated that defendant did not shoot at him, and that he did not see defendant shoot Derrick Merriweather.
Linda Merriweather, the wife of the deceased victim, and Ruth Jenkins, the mother of the deceased, both testified that Derrick Merriweather was alive on April 8, and that they observed him dead at the hospital shortly after midnight on April 9, 1971. His wife identified his body at the hospital and at the morgue, and in court, she identified a photograph of him as he appeared in the hospital. The photograph was later introduced into evidence. Mrs. Jenkins testified that she observed Howard Collins, an acquaintance of her son, in the emergency room of the hospital, and that Howard Collins called to her that "Stanley Davis, Bossey and Crow did it." On cross-examination she stated that Collins had mentioned the last name of only defendant, and that one of the police officers at the hospital told her that Collins had named defendant, Bossey and Crow as his attackers.
A pathologist from the coroner's office testified that he performed an autopsy on the body of Derrick Merriweather, and that in his opinion, death was caused by a shotgun wound.
The State then called as its witnesses five Chicago police officers who participated in the investigation of the crimes. The first officer on the scene, Raymond Crawford, testified that at approximately midnight, April 9, 1971, he responded to a call regarding a shooting at 13359 Greenwood. He found the deceased, Derrick Merriweather, lying near a black Volkswagen in a parking lot. He transported the victim to the emergency room of Roseland Community Hospital. In the emergency room, the witness observed Howard Collins who related that the shooting took place at 133rd and Greenwood. Collins responded affirmatively when the witness asked him if someone with him also had been shot. At this initial interview Collins did not identify defendant as one of his attackers. On cross-examination Officer Crawford recalled that Collins told him that Jackson and some friends had approached him about joining the P-Stone Nation street gang. On redirect examination, Officer Crawford modified this statement by testifying that Collins told him that earlier in the day he and Merriweather were approached "about paying some sort of money, not actually joining, but more like an extortion kind of thing."
A homicide investigator, Officer James Davis, testified that he interviewed Collins in the emergency room of the hospital at approximately 12:30 A.M. on April 9. Collins indicated who had shot him. This witness also testified to the events which occurred in the parking lot prior *952 to the attack, as told to him by Collins. The witness also stated that Collins had told him that he knew three of the four attackers, and had named defendant, Jackson and Jones. After leaving the hospital, Officer Davis commenced a search for defendant, but was unable to locate him at three addresses.
Sergeant John Kwak testified that he immediately began a systematic search of parking lots in the area for the Chevrolet automobile described by Collins. At approximately 4:45 A.M. on April 9, approximately one block from defendant's home, he found a 1960 gray Chevrolet fitting Collins' description. He observed no identifying marks on the car, and called in the crime-laboratory technicians to dust the automobile for fingerprints. The car was then towed to the pound. At trial, Officer Kwak identified two photographs of the automobile he found as "the vehicle in question which was used in the felony or homicide." On cross-examination he stated that no evidence other than fingerprints was found in the car.
Three police officers then testified to the fingerprint identification procedure. Officer Posiadlik testified that he fingerprinted defendant in the police lockup on May 11, 1971. Officer Ginnelly of the Crime Lab testified that he photographed and dusted for fingerprints both the black Volkswagen and the gray Chevrolet. He found latent fingerprints on both automobiles. A fingerprint expert, Officer Mortimer, then testified that he compared defendant's fingerprints taken at the lockup with the latent fingerprints found on the Chevrolet, and was able to identify one of the prints on the automobile as made by defendant. On cross-examination he stated that defendant's prints did not match any found on the Volkswagen, nor any of the other prints found on the Chevrolet.
Officer Cotton testified that he arrested defendant on May 11, 1971.
The State introduced into evidence the photograph of the deceased, photographs of the Volkswagen and the Chevrolet automobiles, and fingerprints identified as defendant's. The State then rested, and defendant presented no evidence on his behalf.
Initially, defendant contends that he was denied a fair trial by the introduction into evidence of hearsay testimony. Defendant argues that certain hearsay testimony identifying him as a perpetrator of the crimes was incompetent and prejudicial. The first instance relied upon by defendant is Ruth Jenkin's testimony that Collins called to her in the emergency room that defendant, Crow and Bossey were the offenders. The second assignment of error is the testimony of Officer Davis that Collins told him that he knew three of the offenders and named defendant as one of the men. The State argues that this testimony was not inadmissible hearsay, but rather fell within the spontaneous declaration *953 exception to the hearsay rule. Assuming, arguendo, that Collins' statements were not spontaneous declarations, we nevertheless do not agree with defendant that reversible error was committed.
1, 2 An objection to hearsay testimony is waived unless made at the time it is offered. (People v. Jones, 2 Ill. App.3d 575, 277 N.E.2d 144.) From the report of proceedings in this cause it is clear that no hearsay objection was made to the testimony of Ruth Jenkins. Moreover, it appears that defense counsel delved more thoroughly into the statement made to the witness by Collins:
"DEFENSE COUNSEL: [E]xactly what did Mr. Collins say regarding the name or names of the people he claimed were
WITNESS: He kept calling their name and my son that was with me, he grabbed my arm, he said, Howard wants you. Howard kept calling my name, Crow, Stanley and Boss.
DEFENSE COUNSEL: Crow, Stanley and Boss. Did he use any first or last name with Crow?
WITNESS: No.
DEFENSE COUNSEL: I gather you did not know?
WITNESS: I didn't know any of them.
DEFENSE COUNSEL: Did he use any last name with Stanley?
WITNESS: Stanley Davis.
DEFENSE COUNSEL: Are you positive of that?
WITNESS: Yes. * * *"
Likewise, the hearsay testimony of Officer Davis regarding Collins' identification of defendant was not objected to by defense counsel. Defendant now maintains that his counsel objected to this testimony and requested a mistrial on that basis. The record clearly indicates, however, that defense counsel objected to officer Davis' testimony concerning a call he received from Officer Kwak about recovery of the Chevrolet. On cross-examination defense counsel again questioned Officer Davis as to Collins' statement to him:
"DEFENSE COUNSEL: Did he tell you there were four men that attacked him or three?
WITNESS: He said that four men got out of the car. Three men came towards him. Two of those three had guns."
3 Moreover, we do not consider these hearsay statements to be plain error pursuant to Supreme Court Rule 615(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).) Our courts have held that the admission of hearsay identification testimony constitutes reversible error only when it serves as a substitute for courtroom identification or when it is used to strengthen and corroborate a weak identification. However, if the hearsay is merely cumulative, and is supported by a positive identification *954 and by other corroborative circumstances, it constitutes merely harmless error. People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Coleman, 17 Ill. App.3d 421, 308 N.E.2d 364, and cases cited therein.
4 A positive identification by one witness with sufficient opportunity to observe defendant is sufficient to sustain conviction. (People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154.) In the instant case the in-court identification of defendant by Howard Collins was positive and clear. He had known defendant prior to the attack, and the contradictions in Collins' testimony as to gang involvement were placed before the jury. The jury, nonetheless, found his testimony to be credible, and we believe such a determination was proper. Additionally, Collins' testimony was corroborated in part by evidence of defendant's fingerprint in the Chevrolet automobile. We therefore conclude that the hearsay testimony was not reversible error.
Defendant also alleges that the Chevrolet automobile found by Officer Kwak was connected to defendant and the crimes by the admission of hearsay testimony. Defendant argues that Officer Kwak had no personal knowledge that the Chevrolet was the "vehicle in question which was used in the felony or homicide."
5 It has long been the rule that photographs of physical evidence are admissible provided the prosecution adduces by competent evidence a nexus between the objects to be introduced and defendant and the crimes. (People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407.) This nexus is shown when a witness identifies the photographs as portrayals of certain facts relevant to the issue, and in addition, verifies the photographs as correct representations of such facts. (People v. Donaldson, 24 Ill.2d 315, 181 N.E.2d 131; McCormick, Evidence 387.) Therefore, the primary issues are relevancy and accuracy.
In the instant case, Officer Kwak testified that he observed an automobile fitting Collins' description approximately one block from defendant's home. Officer Ginnelly then testified that he found latent prints on that auto, and Officer Mortimer stated that he identified one of those prints as defendant's. Officer Kwak also identified the photograph of the automobile as the automobile he observed, thereby verifying the accuracy of the photograph.
6 Defendant's argument is based upon the misconception that Officer Kwak's statement was the sole evidence connecting the automobile to defendant and the crimes. It appears from the record that Collins was not asked to identify photographs of the Chevrolet automobile. We agree with defendant that the appropriate procedure would have been for Collins to identify the car depicted in the photograph and thus connect the automobile to the crimes. However, we do not believe that this omission *955 was fatal to the admissibility of the photograph of the Chevrolet automobile. The police officer's testimony as summarized above was competent, circumstantial evidence which provided the required nexus between the Chevrolet automobile and defendant.
Defendant next assigns as error the introduction into evidence of the photograph of the deceased. While defendant acknowledges the general rule that the admissibility of a photograph of a decreased is within the sound discretion of the trial court, and that such discretion will not be disturbed unless an abuse to defendant's prejudice is shown (People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771), he argues that the identity of Derrick Merriweather and the cause of his death were not in issue, and that, therefore, the photograph was nonprobative.
7 We note that defendant pleaded not guilty and therefore, the State had a right to prove every element of the crimes charged. (People v. Scheck, 356 Ill. 56, 190 N.E. 108.) Moreover, we have examined the black and white photograph of the deceased, and do not find it so gruesome and inflammatory as to unduly prejudice defendant. (People v. Puckett, 6 Ill. App.3d 206, 285 N.E.2d 258.) Therefore, the trial court did not abuse its discretion in allowing the photograph into evidence.
It is next urged by defendant that his arrest was unlawful in that the warrant issued for his arrest was based upon a defective complaint. Defendant reasons that, therefore, his fingerprints taken subsequent to his arrest should have been excluded from evidence. While conceding that the complaint may have been deficient, the State maintains that defendant's arrest was valid, and thus defendant's fingerprints were properly admissible.
Specifically, defendant contends that the complaint failed to set forth sufficient facts on which to base a finding of probable cause for arrest. The complaint, signed by one Officer Grunhard, stated: "Stanley Davis * * * committed the offense of murder in that he shot and killed one Derrick Merriweather with a gun, without lawful justification."
No arrest warrant may issue without probable cause (Giordenello v. United States, 357 U.S. 480), and probable cause cannot be made out by merely conclusory statements that probable cause exists. (United States v. Ventresca, 380 U.S. 102.) Defendant relies upon People v. Waitts, 36 Ill.2d 467, 224 N.E.2d 257, wherein our supreme court held that "an arrest warrant, which is issued on the basis of a complaint which merely states that the complainant has just and reasonable grounds to believe that a person committed an offense, is constitutionally defective." 36 Ill.2d 467, 470.
8 We are of the opinion that we need not direct our attention to the sufficiency of the complaint. It is clear that the survivor of the attack, *956 Howard Collins, named defendant as one of the perpetrators of the crime. This information was transmitted to the arresting officer through official lines of communication. (See People v. Payne, 6 Ill. App.3d 378, 286 N.E.2d 35; People v. Knight, 3 Cal. App.3d 500, 83 Cal. Rtpr. 530.) At that time reasonable grounds to arrest defendant without a warrant existed, and the arrest of defendant was justified. (Ill. Rev. Stat. 1971, ch. 38, par. 107-2(c); People v. Wright, 41 Ill.2d 170, 242 N.E.2d 180.) People v. Waitts, supra, is distinguishable from the instant case in that in Waitts the record indicated no facts upon which probable cause to arrest without a warrant could be based. See also Giordenello v. United States, supra; compare Whiteley v. Warden, 401 U.S. 560, with People v. Chimel, 68 Cal.2d 436, 67 Cal. Rptr. 421, reversed on other grounds, Chimel v. California, 395 U.S. 752.
Defendant next argues that consecutive sentences were improperly imposed and urges reversal of his attempt murder conviction for the reason that both his murder and attempt murder convictions arose from the same conduct. Defendant specifically submits that the only conduct by him was his presence at the scene. However, defendant overlooks Collins' testimony that defendant was holding a shotgun when defendant and Bossey Jones approached the side of the car on which Derrick Merriweather was seated.
9 Section 5-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5-2(c)) provides in pertinent part:
"A person is legally accountable for conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *"
In the instant case the jury was instructed as to this provision and found defendant guilty as charged. The evidence was sufficient to show the accountability of defendant for the acts of the group. People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601; People v. Spagnola, 123 Ill. App.2d 171, 260 N.E.2d 20.
We are of the opinion that the murder of Derrick Merriweather and the attempt murder of Howard Collins were separate offenses, although related in time. Each offense involved separate elements, and the offenses were committed against separate victims. (People v. Bellamy, 8 Ill. App.3d 606, 290 N.E.2d 645.) Therefore, defendant's convictions for murder and attempt murder were proper, and consecutive sentences were not improper. Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4(a).
Finally, defendant requests this court to exercise its power to reduce *957 punishments pursuant to Supreme Court Rule 615(b)(4), and reduce his sentence for murder from 35 to 100 years as imposed by the trial court to the statutory minimum of 14 years. (Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(4).) Defendant bases his argument of excessiveness of sentence on the grounds that he was 20 years of age at the time of the offense, had no prior criminal record, and no evidence was adduced that he was an active participant in the commission of the offenses.
10 The power of the reviewing court to disturb a sentence imposed by the trial court should be exercised with caution and circumspection due to the superior position of the trial court, during the course of the trial and of the hearing in aggravation and mitigation, to assess the appropriate punishment. People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720.
In the instant case the sentence imposed for murder was within the limits set by the legislature. The trial court stated: "I am not sure whether it was a recruiting of gentlemen in gangs or what, but I know it was an absolute execution." We find that the sentence imposed was not excessive and that the trial court did not abuse its discretion in imposing its sentence. Therefore we will not exercise our power to reduce the sentence. (See People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706.) Accordingly, the judgments of conviction and the sentences thereon are affirmed.
Affirmed.
HAYES, P.J., and DOWNING, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
177 Conn. 58 (1979)
G & R TIRE DISTRIBUTORS, INC.
v.
ALLSTATE INSURANCE COMPANY ET AL.
Supreme Court of Connecticut.
Argued January 4, 1979.
Decision released March 13, 1979.
LOISELLE, BOGDANSKI, LONGO, PETERS and PARSKEY, JS.
*59 Sidney Axelrod, with whom, on the brief, was Peter Gianacoplas, for the appellant (plaintiff).
Snow Gene Munford, for the appellees (defendants).
PETERS, J.
The plaintiff, G & R Tire Distributors, Inc., operated a tire recapping business in a barn in Stafford Springs, Connecticut. On August 4, 1972, the building and its contents were totally destroyed by fire, the damage apparently resulting from a furnace explosion. At the time of the fire, there was in effect a "Boiler and Machinery Policy" covering the premises, issued by the defendant Allstate Insurance Company through its agent, the defendant Charles M. Sullivan, Jr.
Despite a timely request, Allstate refused to pay for any of the loss occasioned by the explosion and fire. The plaintiff then instituted the present suit in two counts. The first count, against Allstate alone, alleged that the loss was covered by the boiler and machinery policy. Allstate denied any responsibility under the policy, claiming that a furnace explosion did not constitute an "accident" under the terms of the policy because the letters "FE" did not appear on the policy schedule as a designated covered hazard. Even if a covered "accident" had occurred, policy language excluding fire-related losses would preclude recovery. The second count, against both Allstate and the defendant Sullivan, Allstate's authorized agent, alleged misrepresentation that the policy would protect the plaintiff in the event of fire resulting from a furnace explosion.
After a trial to a jury, a verdict was returned in favor of both defendants. The plaintiff's motion to set aside the verdict was denied and the plaintiff *60 has appealed, claiming error in four respects: (1) the court's refusal to permit one witness to testify concerning prior inconsistent statements of another witness; (2) the court's failure to charge the jury as to the meaning of the term "mistake not due to negligence"; (3) the court's charge to the jury on the second count that a verdict for the defendant Sullivan required a verdict for the defendant Allstate; and (4) the court's charge on the interpretation of the policy relating to the coverage of furnace explosions. These claims will be considered separately.
In a statement signed four months after the fire, an employee of the plaintiff, Charles Busse, stated that on the day of the fire he heard a blast and saw the boiler in flames. During the trial, Busse was called as a defense witness and testified that the fire had started in the grinding room, and not in the boiler room where the furnace was located, thus contradicting his prior written statement. The issue of the exact origin of the fire was contested, and the discrepancy was therefore material. In the presence of the jury, Busse admitted that his signed statement contradicted his trial testimony, and that both could not possibly be true. The plaintiff's attorney subsequently attempted to question a fire marshal, who had been present at the scene of the fire, concerning statements made to him on that day by Busse relating to the original location and cause of the fire. The court refused to allow the testimony, although offered solely for the purpose of establishing a prior inconsistent statement by Busse. The plaintiff claims error in that refusal.
It is an elementary rule of evidence that the credibility of a witness may be attacked by showing a *61 materially inconsistent prior statement. State v. Addazio, 169 Conn. 416, 425-26, 363 A.2d 153 (1975); State v. Crane, 169 Conn. 242, 245, 362 A.2d 843 (1975); see McCormick, Evidence (2d Ed. 1972) §§ 28, 34-38. Although generally a foundation should be laid before introducing evidence of a prior inconsistent statement; McCormick, op. cit. § 37; "[i]n this state, we have no inflexible rule regarding the necessity of calling the attention of a witness ... to his alleged prior inconsistent statements before either questioning him on the subject or introducing extrinsic evidence tending to impeach him." State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976). Where, as here, however, the witness' attention was called to his prior inconsistent statement, and he admitted making the statement, his credibility had already been called into question and there was no need for further proof of inconsistency. The trial court is vested with liberal discretion as to how such an inquiry should be conducted; State v. Saia, supra; and its determination that additional evidence of inconsistency would be merely cumulative is not in error. See Fishman v. Stamford, 159 Conn. 116, 123, 267 A.2d 443, cert. denied, 399 U.S. 905, 90 S. Ct. 2197, 26 L. Ed. 2d 560 (1970).
The plaintiff next contends that the court erred in refusing to charge the jury as to the meaning of the term "mistake not due to negligence." In the course of its original instructions to the jury, the court explained that one of the special defenses in the case was that the plaintiff was guilty of contributory negligence for its failure to read and familiarize itself with the terms and coverage of the policy. In this connection, the court charged that "[t]he general rule is that where a person of mature years who can read and write signs or *62 accepts a formal written contract affecting his pecuniary interests, it is his duty to read it, and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications, including the intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable business prudence off his guard in this matter." The plaintiff had no objection to that portion of the charge when it was originally given. In fact, the plaintiff conceded that the court had charged in accordance with the plaintiff's own requests to charge "as they applied to the question of contributory negligence in failing to read the policy."
On the second day of deliberations, the jury requested a recharge concerning the obligation of a policyholder to read and understand a policy. The court repeated its original charge verbatim, and only then did the plaintiff object to what it claimed was an ambiguity in the term "mistake not due to negligence." Neither the original charge nor the recharge was in error. The portion of the recharge to which objection was taken was the recital of a general rule. Although such a general rule may encompass some aspects not applicable to the particular case, it is not error to recite the rule in its generality so long as the jury are not misled as to its applicability. "It was fortuitous that the jury requested that the charge be repeated; an unobjectionable charge does not become erroneous by repetition." Kosko v. Kohler, 176 Conn. 383, 389-90, 407 A.2d 1009 (1978).
The plaintiff's third claim of error is that the court erroneously charged the jury that if they *63 found in favor of the defendant Sullivan on the second count, they must also find in favor of the defendant Allstate on that count. We cannot agree with the plaintiff's contention that the second count of the complaint can form a basis for liability on the part of Allstate independent of the liability of its agent, Sullivan. Whereas the first count of the complaint focused upon All-state's liability under the terms of the policy, the plaintiff in the second count sought to apply the theory of respondeat superior in order to hold Allstate liable for any losses engendered by the misrepresentations of its agent as to coverage. Since the liability of an insurer for any fraud, misrepresentation, or wrongful act of its agent is derivative, the court's instruction was not in error. See 4 Couch, Insurance (2d Ed. 1960) §26:433; cf. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 258, 268 A.2d 663 (1970).
We turn finally to the plaintiff's claims that the court erred in various particulars in its charge concerning the interpretation of the boiler and machinery policy with respect to its coverage of furnace explosions. The plaintiff urges that the court should not have charged that the policy did not cover a furnace explosion and should have charged that the defendant Allstate was barred from reliance on the policy's furnace explosion exclusion since Allstate had not pleaded specially to that effect. The plaintiff further maintains that since there was a question concerning the policy's coverage of fire caused by a furnace explosion it was entitled to a charge on that issue.
The insurance policy contains an initial statement of coverage: "Insuring Agreement. In consideration of the Premium, the Company agrees with the *64 Assured named in the Declarations made a part hereof respecting loss from an Accident, as defined herein, occurring during the Policy Period, to an Object, as defined herein, while the Object is in use or connected ready for use at the Location specified for it in the Schedule, subject to ... the Definitions and Conditions, to other terms of this policy and to the Schedules and Endorsements issued to form a part thereof, as follows: Section 1 Loss on Property of Assured. To Pay for loss on the property of the Assured directly damaged by such Accident (or, if the Company so elects, to repair or replace such damaged property), excluding...." (Emphasis added.) There then follow eight specific exclusions from the policy's coverage.
In a separate section of the policy, under the heading "Definitions," the terms "Object" and "Accident" are defined,[1] followed by the provision: "Furnace Explosion. If the abbreviation `FE' is entered in the Schedule opposite the description of the Object in the column captioned `Coverage,' a sudden and accidental explosion of gas or unconsumed fuel within the furnace of said Object or within the gas passages therefrom to the atmosphere shall be an Accident to said Object, but if the abbreviation `FE' is not so inserted, the furnace of the Object and the gas passages therefrom to the *65 atmosphere shall be considered as `outside the Object' and such an explosion shall not constitute an Accident." It is undisputed that the abbreviation "FE" was not entered in the policy schedule.
Characterization of the paragraph entitled "Furnace Explosion" provides the main focus of the dispute over policy coverage. The plaintiff contends that the paragraph constituted an exclusionary clause, removing from coverage that which otherwise would be included, and as such should have been specially pleaded by the defendant. The defendant, which did not specially plead the furnace explosion clause as a defense, avers that the clause is merely a definition of and limitation upon basic coverage, and thus need not be pleaded specially.
In support of its position, the plaintiff points to the general rule that "where a policy insures generally against a particular peril, and contains a further clause exempting the company from liability for loss caused in a certain manner, which would otherwise have fallen within the general terms of the policy, the burden is upon the insurer to allege and prove that the loss fell within the exemption. Such a clause is considered as an exemption from liability and a defense, rather than as an exception proper limiting and defining the risk covered." Wojcik v. Metropolitan Life Ins. Co., 124 Conn. 532, 534-35, 1 A.2d 131 (1938).
This rule was applied in Fogarty v. Fidelity & Casualty Co., 120 Conn. 296, 180 A. 458 (1935). In Fogarty, the defendant had issued a policy insuring the plaintiff's automobile "against loss on account of damages to, or loss of" the vehicle, "if caused by collision with any object or by upset (excluding *66 damage by fire)." Id., 298. (Emphasis added.) The car was destroyed by a collision caused by fire, but the court held that in order for the defendant to claim the benefit of the provision excluding damage by fire, it should have specially pleaded to that effect. Id., 299-300. Since the defendant had not so pleaded, there could be no limitation of liability under the exclusionary clause. Unlike the present case, however, the phrase limiting the insurer's liability in Fogarty was obviously the type of "exclusionary clause" that should logically be pleaded and proved by the insurer. Collisions frequently result in fire damage, and such damage would have been covered but for the exemption.
In this case, by contrast, it would not be appropriate to characterize the "Furnace Explosion" paragraph as an exclusionary clause. First, the language appears under the section entitled "Definitions," a section that complements the agreement to insure "loss from an Accident, as defined herein ... to an Object, as defined herein" by defining and limiting the scope of the coverage itself. Further, the policy contains eight specially enunciated exceptions to coverage, which are set out in the section entitled "Insuring Agreement." No cogent reason has been advanced why we should ignore this clearly delineated and entirely normal pattern of inclusion and exception.
This case is closely akin to that of Wojcik v. Metropolitan Life Ins. Co., supra, in which the plaintiff was the beneficiary of an insurance policy on the life of her husband. The insurance promised payment of a lump sum upon proof of death by accident, "provided ... that death shall not have been the result of self-destruction." Id., 534. In a *67 suit to recover the accidental death benefit, the defendant generally denied that the death was accidental and introduced some evidence that it might have been suicide. The plaintiff contended that since the defendant had not specially pleaded suicide as a defense, it was not entitled to the benefit of that defense. The court held that the general denial was sufficient, since suicide "cannot properly be regarded as an accident and the provision excluding it from the coverage of the policy is not in the nature of an exemption but is inserted in order to make clear the intended scope of the coverage." Id., 535. In this case, similarly, the furnace explosion language did not take away coverage granted in another part of the policy. Rather, it limited the original scope of coverage so that it was unnecessary for the defendant to plead the exclusionary language.
In view of our conclusion that the policy's furnace explosion clause was not an exclusionary provision requiring special pleading and proof, it is clear that the trial court was correct in instructing the jury that furnace explosion was not a covered hazard. The plaintiff concedes that this conclusion obviates further inquiry into coverage of fire losses caused by a furnace explosion.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] The relevant portions of the definitions include: "BOILERS, FIRED VESSELS AND ELECTRIC STEAM GENERATORSBROAD COVERAGE DEFINTION OF OBJECT. `Object' shall mean any complete vessel designated and described in the Schedule...."
"DEFINITION OF ACCIDENT. As respects any Object designated and described in the Schedule for which the word `Broad' is inserted in the column headed `Coverage,' `Accident' shall mean a sudden and accidental breakdown of the Object, or a part thereof, which manifests itself at the time of its occurrence by physical damage to the Object that necessitates repair or replacement of the Object or part thereof...."
| {
"pile_set_name": "FreeLaw"
} |
729 F.2d 1464
Piscopo (Vincent)v.Amoco Oil Company
NO. 82-2167
United States Court of Appeals,Seventh Circuit.
FEB 14, 1984
1
Appeal From: N.D.Ill.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1737
ANGELA SWAGLER; ELIZABETH WALSH,
Plaintiffs - Appellees,
v.
NEIGHOFF, State Trooper, in his official and in his
individual capacity; BRADLEY, State Trooper, in his official
and in his individual capacity; RASINSKI, in his official
and in his individual capacity,
Defendants – Appellants,
and
HARFORD COUNTY; CITY OF BEL AIR, MARYLAND; TERRENCE
SHERIDAN, Colonel, in his official capacity; DONALD RAVADGE,
Bel Air Police Officer in his individual capacity; MARK
ZULAUF, Bel Air Police Officer in his official capacity;
ARMAND DUPRE, Bel Air Police Officer in his individual
capacity; L. JESSE BANE, Harford County Sheriff, in his
individual capacity,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cv-02289-RDB)
Argued: March 24, 2010 Decided: October 18, 2010
Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
ARGUED: Joshua Neal Auerbach, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants. Timothy Donald
Chandler, ALLIANCE DEFENSE FUND, Folsom, California, for
Appellees. ON BRIEF: Douglas F. Gansler, Attorney General,
Baltimore, Maryland, for Appellants. Kevin Theriot, Dale
Schowengerdt, ALLIANCE DEFENSE FUND, Leawood, Kansas, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Maryland law enforcement officers arrested Appellees Angela
Swagler and Elizabeth Walsh, together with 16 others, as they
participated in a pro-life demonstration taking place along a
state highway in Harford County, Maryland. The Appellants,
Maryland State Troopers Christopher Bradley, Charles Neighoff,
and Walter Rasinski (“Appellants” or “the troopers”), having
dispersed the demonstrators one hour earlier at a nearby
location, and having consulted with a local prosecutor, effected
Appellees’ arrests and charged them with impeding traffic (among
other violations). Seeking damages as well as injunctive and
declaratory relief under federal and state law, Swagler and
Walsh filed a nine-count amended complaint against the troopers
and numerous other defendants. The troopers moved to dismiss,
or, in the alternative, for summary judgment, as to all federal
claims asserted against them in their individual capacities,
invoking qualified immunity. The district court concluded that
the request for qualified immunity was “premature” and denied
the troopers’ motion. In so ruling, the district court
explicitly declined to treat the troopers’ motion as a motion
for summary judgment. The troopers now bring this interlocutory
appeal from the district court’s denial of qualified immunity.
We conclude that the district court committed no abuse of
discretion in declining to consider the troopers’ motion as a
3
motion for summary judgment and, instead, in limiting its
consideration of the request for qualified immunity to the
amended complaint filed by Appellees and the attachments
thereto. Nevertheless, we further conclude that two of
Appellees’ claims fail as a matter of law. Accordingly, we
affirm in part and reverse in part. (Appellees’ motion to file
attachments to their brief is denied as moot.)
I.
The following facts are undisputed or are drawn from the
well-pled allegations contained in Appellees’ amended complaint
and set forth in the light most favorable to Appellees, the non-
movants in the district court.
At approximately 4:00 p.m. on Friday, August 1, 2008,
Swagler and Walsh, then 18 and 20 years old, respectively,
gathered with 20 to 30 other members of a pro-life/anti-abortion
group (all wearing blue T-shirts with large white lettering
conveying their fundamental message: “Pro-Life” on the front;
“Defend Life” on the back). The group staged a demonstration
(“the first demonstration”) at the intersection of state Route
24 (an 11-lane divided highway) and Route 924 in Harford County,
Maryland. There are no sidewalks in or at this intersection and
one of the troopers who regularly patrols in the vicinity
attested that he had never observed pedestrians in the area. A
4
grassy shoulder runs adjacent to Route 24 and there is a grassy
median separating the northbound and southbound lanes. The
intersection of Routes 24 and 924 is approximately one-half mile
north of the heavily-used Route 24 interchange with I-95.
The demonstrators held posters, some of which were as large
as three feet by five feet and included graphic images of
dismembered fetuses. 1 The demonstrators stood 20 to 40 feet
apart, taking care, they alleged, not to disrupt passing
motorists’ views of road signs.
By 4:20 p.m. that day, motorists driving through the
intersection and on Route 24 began to call the Maryland State
Police Barrack in Bel Air, Maryland. Specifically, between 4:20
p.m. and 4:40 p.m., the Barrack received approximately 20 calls
from motorists traveling through the area; eight of the calls
were recorded. (The rapid receipt of the calls apparently
overwhelmed the Barrack’s recording capacity.) The content of
the recorded calls reflect that the callers expressed two
sentiments: (1) disapproval of the public display of images of
dismembered fetuses and (2) concern about the impact of the
1
The demonstrators displayed large, full-color images of
the dismembered fetus known in the Pro-Life/Anti-Abortion
Movement as “Baby Malachi,” an image that has long been a staple
of such demonstrations. See World Wide Street Preachers’
Fellowship v. City of Owensboro, 342 F. Supp. 2d 634, 636
(W.D.Ky. 2004); New York ex rel. Spitzer v. Cain, 418 F. Supp.
2d 457, 462 n.2 (S.D.N.Y. 2006).
5
images on their own ability and that of others to drive safely.
At the time of the police response to the calls about the
demonstration, Friday evening rush hour was underway. The posted
speed limit on this portion of Route 24 is 55 miles per hour.
Upon her receipt of the motorists’ calls (and after
learning of others received by subordinates), the duty sergeant
at the Barrack dispatched Troopers Bradley, Neighoff, and
Rasinski to the scene. Trooper Bradley was the first to arrive,
followed by Rasinski and Neighoff. The troopers observed about
30 persons standing on and about the shoulders of the
intersection and on the median strip of Route 24 holding the
posters. The troopers informed the participants, incorrectly,
that county law required that they obtain a “permit” to conduct
the demonstration. When they learned the demonstrators had no
“permit,” the troopers ordered the group to “leave the area” and
to “leave the county,” specifically informing the demonstrators
that they would be arrested unless they discontinued their
demonstration. 2 After expressing disagreement with the troopers
2
Although the “leave the county” order was urged on us at
oral argument, in neither their amended complaint nor in their
affidavits did Appellees make that particular allegation.
Rather, the amended complaint alleges that Appellees were told,
“You need to pack up and go or you’re going to jail, that’s it.”
J.A. 50. In any event, Appellees knew they remained in Harford
County when they relocated within the town limits of Bel Air,
two miles north of their original location. They simply
miscalculated the jurisdictional reach of the state police. J.A.
(Continued)
6
over several minutes of dialogue with them, during which they
insisted that they had a First Amendment right to be where they
were, doing what they were doing, the demonstrators departed the
area. 3 In particular, Appellees told the troopers that because
the demonstrators wished to avoid arrest, they would comply with
the dispersal order. J.A. 49 (Am. Compl. ¶ 37).
Meanwhile, Trooper Charles Mohr (who is not a party to this
appeal) telephoned the Office of the State’s Attorney for
Harford County to seek a prosecutor’s advice regarding the
proper response to the demonstration. Trooper Mohr spoke with
Deputy State’s Attorney Scott Lewis, who opined, albeit somewhat
tentatively, that the demonstrators were likely violating the
county law that prohibits the obstruction of the free flow of
traffic and that the troopers would be “on good ground” to order
the demonstrators to leave the area. Lewis specifically noted
that the demonstration could cause hazards on the highway during
rush hour (arising from, among other things, distracted
79 (“We attempted to comply with the . . . troopers’ command by
moving down the street two miles.”).
3
Appellees contend that they and their group had conducted
similar demonstrations within the State of Maryland in the weeks
preceding the Harford County demonstration and they had never
been ordered to cease their activity.
7
motorists). Trooper Mohr related the substance of this
conversation by radio to Trooper Neighoff.
After their confrontation with the troopers at the
intersection of Routes 24 and 924, the demonstrators (including
Appellees) departed that area and resumed their demonstration
approximately two miles north, near or at the intersection of
Route 24 and Macphail Road (“the second demonstration”). That
location is just inside the Bel Air town limits but still within
Harford County. Appellees thought that they had left the
enforcement jurisdiction of the state police, but in fact, they
had not done so. They resumed their demonstration on the wide
grassy shoulder adjacent to Route 24; as at the prior location,
there were no sidewalks. At least ten motorists who observed the
second demonstration called the Bel Air Barrack to express
similar concerns about the nature of the posters and the impact
of the demonstrators’ presence on traffic safety. Only one of
these calls was recorded.
The same three troopers went to the scene of the second
demonstration, together with Trooper Mohr. There, Trooper Mohr
described to Trooper Neighoff his earlier telephone call with
Deputy State’s Attorney Lewis and Lewis’s advice. Sergeant Donna
Bohlen, the troopers’ superior officer (who was aware of Lewis’s
conversation with Mohr), directed the troopers via radio to
arrest the demonstrators. The troopers and other law enforcement
8
officers assisting them then arrested 18 of the demonstrators
(i.e., those whom the troopers recognized from their earlier
encounter at the intersection of Routes 24 and 924), including
Appellees, and transported them to the Barrack for processing
and charging.
At the Barrack, Trooper Mohr called Deputy State’s Attorney
Lewis again. Lewis advised Trooper Mohr that the demonstrators
should be charged with the following offenses: (1) disorderly
conduct, see Md. Code Ann., Crim. Law § 10-201(c)(2); (2)
disobeying a lawful order, see id. § 10-201(c)(3); and (3)
impeding traffic, see Harford County Code § 193-4(B)(1). 4 With
Lewis’s recommendation and at the order of Sgt. Bohlen, the
troopers charged all of the adult demonstrators with the
offenses that Lewis had identified. The Harford County State’s
Attorney entered a nolle prosequi of all the charges as to all
arrestees when the cases came on for trial several weeks after
the arrests.
II.
As relevant to this appeal, Swagler and Walsh sought
damages pursuant to 42 U.S.C. § 1983 against each of the
4
While one section of Harford County Code § 193-4 prohibits
“loitering,” the troopers did not charge any of the arrestees
with “loitering” -- only with impeding traffic.
9
troopers in his individual capacity on the following four
theories: (1) violation of the Fourteenth Amendment due process
guarantee based on “vague” “policies and actions;” (2) violation
of the Fourteenth Amendment’s substantive due process component;
(3) violation of the First Amendment free speech guarantee; and
(4) violation of the Fourth Amendment’s prohibition on
unreasonable seizures. The troopers filed pre-discovery
dispositive motions based on qualified immunity, providing
materials outside of the pleadings in support of the motion. The
district court declined to determine whether the troopers were
entitled to qualified immunity, concluding that the request was
“premature.” That is, particularly in light of a Fed. R. Civ. P.
56(f) affidavit from Appellees’ counsel seeking permission to
take discovery before filing a more substantive response to the
troopers’ dispositive motion, the district court concluded that
Appellees should be given an opportunity for discovery before
addressing the issue of qualified immunity.
Specifically, the district court ruled as follows. As to
the due process claims, the district court concluded that the
Amended Complaint sufficiently alleged violations of
constitutional rights, without specific mention of the issue of
qualified immunity. Swagler v. Harford County, No. 08-2289, 2009
U.S. Dist. LEXIS 47895, at *18-19 (D. Md. June 2, 2009). As to
the First Amendment claims, the court was persuaded that such a
10
claim was “highly fact-dependent.” By this, we take it that the
court focused on the issue, pressed by Appellees before us,
whether proof of the actual subjective motivation of the
troopers in ordering the cessation of the demonstration (or in
arresting the Appellees upon their defiance of that order)
required factual development of the record to inform the
qualified immunity inquiry. Id. As to the Fourth Amendment
unreasonable seizure claims, the district court essentially
concluded that the Appellees had satisfactorily alleged and/or
had satisfactorily generated a genuine dispute of material fact
as to whether the second demonstration (and perhaps the first as
well) had impeded traffic. Id. at *23.
III.
In this timely interlocutory appeal, over which we have
jurisdiction pursuant to 28 U. S. C. § 1291, we review solely
legal issues, see Mitchell v. Forsyth, 472 U.S. 511, 529 n.9
(1985); Johnson v. Jones, 515 U.S. 304, 313 (1995), applying a
de novo standard. 5 See, e.g., Johnson v. Caudhill, 475 F.3d 645,
5
We reject Appellees’ contention that we lack jurisdiction
over this appeal under the line of authorities recently
summarized in Culosi v. Bullock, 596 F.3d 195, 201-03 (4th Cir.
2010) (dismissing interlocutory appeal by county police officer
seeking reversal of district court’s denial of qualified
immunity at summary judge stage).
11
650 (4th Cir. 2007). Whether an asserted factual dispute is
material to qualified immunity is also a legal determination
subject to de novo review. See, e.g., Elliott v. Leavitt, 99
F.3d 640, 644 (4th Cir. 1996).
When evaluating a claim of qualified immunity, courts
traditionally engage in a two-step analysis, Wilson v. Layne,
526 U.S. 603, 609 (1999), considering first the threshold
question of whether the facts alleged, taken in the light most
favorable to the plaintiff, show that the defendants’ conduct
violated a constitutional right. Saucier v. Katz, 533 U.S. 194,
200-201 (2001). If so, the next step is to determine whether the
right was clearly established. Id. In undertaking this case-by-
case determination, courts ask “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. Importantly,
[i]n determining whether the right violated was
clearly established, we define the right in light of
the specific context of the case, not as a broad
general proposition . . . . If the right was not
clearly established in the specific context of the
case -- that is, if it was not clear to a reasonable
officer that the conduct in which he allegedly engaged
was unlawful in the situation he confronted -- then
the law affords immunity from suit.
McKinney v. Richland County Sheriff’s Dep’t, 431 F.3d 415, 417-
18 (4th Cir. 2005) (internal quotation marks and citations
omitted; bracket added). This inquiry is an objective one;
“[s]ubjective factors involving the officer’s motives, intent,
12
or propensities are not relevant.” Smith v. Reddy, 101 F.3d 351,
357 (4th Cir. 1996).
The Supreme Court has modified the strict two-tiered
approach. Courts are now authorized to evaluate the two factors
in the order most appropriate for the specific case. Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009) (“The judges of the
district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.”).
IV.
The troopers contend that the district court erred in
declining to rule, even at this early stage of the case, that
qualified immunity shielded them from Appellees’ damages claims. 6
Specifically, they contend that as to the due process and
Fourth Amendment claims, as a matter of law, no constitutional
6
As the district court acknowledged, the Supreme Court
“repeatedly ha[s] stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (alteration
added). See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.
1992) (“Because qualified immunity is designed to shield
officers not only from liability but from the burdens of
litigation, its establishment at the pleading or summary
judgment stage has been specifically encouraged.”).
13
violation can be shown under any plausible interpretation of the
facts, and therefore they are entitled to qualified immunity. As
to the First and Fourth Amendment claims, they further contend
that at the time they acted to disperse the demonstration and
then to arrest Appellees for violating the dispersal order,
there was no “clearly established” principle of federal
constitutional jurisprudence that prohibited local law
enforcement officers from doing so.
Appellees forcefully dispute the troopers’ contentions.
They focus most heavily on their First Amendment claims and
emphasize the alleged statement by Trooper Bradley that they
“leave the county.” They contend:
Even if [Appellees’] constitutionally-protected
speech in a public forum had caused some degree of
traffic disruption, that could not have formed a basis
to declare the entire county off-limits for free
speech activities. This is particularly true given the
dubious base upon which the Troopers solely rely to
show they were reasonable in arresting Plaintiffs for
obstructing traffic: anonymous phone calls from
passing motorists who disliked Plaintiffs’ message and
whose only allegations of disruption were based on
Plaintiffs’ message, not conduct. In short, the
linchpin of the Troopers’ qualified immunity claim is
their unconstitutional and unreasonable order to leave
the county; once this fact is pulled out, their
qualified immunity defense falls apart.
Appellees’ Br. at 7.
Having fully considered the arguments of the parties and
the controlling legal principles, we are constrained to agree
with Appellants as to the due process claims. As to the First
14
and Fourth Amendment claims, however, we hold that the district
court acted within its discretion in denying the troopers’
request for qualified immunity in advance of discovery.
V.
We first consider whether qualified immunity shields the
troopers from Appellees’ due process claims. We then consider
whether Appellees’ First Amendment and their Fourth Amendment
claims, respectively, must likewise yield to the troopers’
assertion of qualified immunity.
A.
Unsurprisingly, perhaps, in their briefing and arguments,
the parties have essentially ignored the Fourteenth Amendment
due process claims. 7 Nonetheless, we conclude that the district
court should have dismissed those claims.
It is well-settled that “[l]egislation may run afoul of the
Due Process Clause because it fails to give adequate guidance to
those who would be law-abiding, to advise defendants of the
nature of the offense with which they are charged, or to guide
courts in trying those who are accused.” Musser v. Utah, 333
7
To be sure, the troopers’ Notice of Appeal makes clear
that they appeal the denial of qualified immunity on the due
process claims as well as the First and Fourth Amendment claims.
J.A. 252.
15
U.S. 95, 97 (1948). Here, Appellees alleged that the troopers’
“policies and actions against [their] speech are
unconstitutionally vague, in that they neither define
sufficiently the standards utilized in governing citizens’
speech in public fora, nor do they protect against arbitrary and
discriminatory enforcement.” J.A. 62 (Am. Compl. ¶ 134). These
claims fail as a matter of law. First, the void-for-vagueness
doctrine focuses on legislation -– not “policies and actions.”
Second, the Appellees do not point to a specific Maryland State
Police policy or a specific action on the part of the troopers
that would be considered “vague.”
In any event, the troopers’ Fed. R. Civ. P. 12(b)(6) motion
to dismiss clearly invoked the qualified immunity doctrine vis-
à-vis Appellees’ due process vagueness claim because, if there
is no claim, then there is no constitutional violation based on
“clearly established” law. Chavez v. Martinez, 538 U.S. 760, 766
(2003) (Thomas, J.) (“In deciding whether an officer is entitled
to qualified immunity, we must first determine whether the
officer’s alleged conduct violated a constitutional right . . .
. If not, the officer is entitled to qualified immunity.”)
(internal citations omitted); see Siegert v. Gilley, 500 U.S.
226, 232 (1991) (noting that “the determination of whether the
plaintiff has asserted a violation of a constitutional right at
all” is a “necessary concomitant” to the threshold immunity
16
question). We hold that Appellees have not asserted and cannot
assert a cognizable due process “vagueness” claim against the
troopers and, therefore, qualified immunity applies to shield
the troopers from damages claims asserted on such a theory. Id. 8
Similarly, Appellees’ alleged substantive due process
claims are non-existent as a matter of law. The Supreme Court
explained in Conn v. Gabbert, “We have held that where another
provision of the Constitution ‘provides an explicit textual
source of constitutional protection,’ a court must assess a
plaintiff’s claims under that explicit provision and ‘not the
more generalized notion of “substantive due process.’” 526 U.S.
286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). In the case at bar, the Appellees’ rights to free
speech and to freedom from unreasonable seizure are explicitly,
textually guaranteed under the First and Fourth Amendments,
respectively, as incorporated by the Fourteenth Amendment.
Accordingly, if Appellees have viable damages claims at all,
8
Indeed, the due process vagueness claims are clearly moot
because, on December 1, 2009, during the pendency of this
interlocutory appeal, Appellees filed a second amended complaint
in the district court in which they voluntarily dismissed the
due process vagueness claims against the troopers. See Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989)
(observing that this court will take judicial notice of the
existence and content of the records of a court of record). They
assert the vagueness claim against certain municipal defendants
and supervisory officers only. See No. 08-2289, Docket No. 125
at ¶ 137 (D. Md. 12/1/09).
17
they must be rooted in those provisions and not in substantive
due process. Conn, 526 U.S. at 293.
B.
The district court essentially declined to consider, under
Fed. R. Civ. P. 12(b)(6), the applicability of qualified
immunity as to Appellees’ First Amendment claims. Although the
district court said very little about the First Amendment
claims, it basically concluded that whether the First Amendment
claims were based on a retaliation theory (as Appellees seem to
characterize them on appeal before us), see, e.g., Constantine
v. Rectors and Visitors of George Mason Univ., 411 F.3d 474,
499-500 (4th Cir. 2005), or on a theory of improper prior
restraint, see Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989), if the allegations in the amended complaint were true,
then such a claim would be made out.
We do not disturb the district court’s conclusion in that
regard. And this is so even though Appellees do not contend that
the troopers were actually individually, subjectively motivated
to squelch their speech based on its content. 9 Viewed in the
9
Any doubt concerning the gravamen of Appellees’ theory is
extinguished by an examination of the second amended complaint
filed in the district court during the pendency of this appeal.
Appellees had originally alleged that “the individual arresting
officers acted maliciously and with intent to violate the
constitutional and statutory rights of the Plaintiffs by
arresting [them].” J.A. 61 (emphasis and alteration added). In
(Continued)
18
light most favorable to Appellees, their contention seems to be
that the troopers are liable because they took adverse action
against Appellees (that is, they ordered the demonstration to
cease and then arrested Appellees) by acting as willing agents
of the motorists who called the Bel Air Barrack to complain,
according to Appellees, about the “content” of Appellees’
posters of dismembered fetuses. Under this iteration of
Appellees’ theory, the troopers culpably enforced a “heckler’s
veto.” 10 Thus, according to Appellees, the dispersal order
(“leave the county”) was not “content-neutral,” was not
“narrowly tailored” to serve significant or compelling
governmental interests, and did not leave open other channels of
communication. See Rock Against Racism, 491 U.S. at 791.
the second amended complaint, however, see supra n.8, Appellees
have specifically deleted in that allegation the phrase “the
individual arresting officers” and instead, have limited that
allegation to two supervisory officials. See No. 08-2289, Docket
No. 125 at ¶ 123 (D.Md. 12/1/09).
10
See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966);
Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985)
(“Historically, one of the most persistent and insidious threats
to first amendment rights has been that posed by the ‘heckler's
veto,’ imposed by the successful importuning of government to
curtail ‘offensive’ speech at peril of suffering disruptions of
public order . . . . Though this ‘veto’ has probably been most
frequently exercised through legislation responsive to majority
sensibilities, the same assault on first amendment values of
course occurs when, as here, it is exercised by executive action
responsive to the sensibilities of a minority.”) (citations
omitted), cert. denied, 476 U.S. 1159 (1986).
19
Furthermore, Appellees contend, their arrests constituted
retaliation based on the content of their speech. They
specifically allege they are “chilled” from further pro-life
demonstrations in Harford County as a result of the troopers’
actions and that they suffer from several adverse emotional and
psychological effects from their arrests. J.A. 62.
Whether Appellees will be able to sustain their damages
claims against the troopers and overcome the assertion of
qualified immunity, either at the summary judgment stage or
later on the basis of jury factfinding if summary judgment is
denied, we need not and do offer an opinion in this
interlocutory appeal. Manifestly, the “pure speech” quality of
images of a dismembered fetus (at least as the image is deployed
in the pro-life movement, see supra n.1) counsels our respect
for Appellees’ claims. See Am. Legion Post 7 v. City of Durham,
239 F.3d 601, 606 (4th Cir. 2001) (“‘[c]ommunication by signs
and posters is virtually pure speech’”) (citation omitted).
On the other hand, however, in ordering the cessation of
the first demonstration, the troopers arguably acted reasonably
and on a content-neutral basis to address a risk of automobile
accidents. Cf. Lytle v. Doyle, 326 F.3d 463, 470 (4th Cir. 2003)
(observing that “the State may act to protect its substantial
and legitimate interest in traffic safety” consonant with First
Amendment protections) (citations omitted); Ovadal v. City of
20
Madison, 469 F.3d 625, 630 (7th Cir. 2006) (observing that
removal of a protester carrying large signs on busy highway
overpass deemed content-based if his “message angered drivers
who then reacted and were distracted from the task of driving
safely[,]” but content-neutral if his “presence on that day and
under those driving conditions created a ‘spectacle’ that led
some drivers to be distracted from the task of safely
navigating” the highway) (emphases in original). 11 Whether that
is so remains to be seen after Appellees have taken discovery.
The district court did not err or commit an abuse of discretion
in so concluding.
C.
What we have said regarding the First Amendment claims
largely disposes of the troopers’ assertion that the district
court erred in declining to address under Fed. R. Civ. P.
12(b)(6) the applicability of qualified immunity as to the
Fourth Amendment unreasonable seizure claims. “This Court has
held that the Fourth Amendment right to be arrested only on
11
Of course, Appellees’ First Amendment rights are not
limitless. See United States v. Grace, 461 U.S. 171, 177-78
(1983) (quoting Adderley v. Florida, 385 U.S. 39, 47-48 (1966))
(“We have regularly rejected the assertion that people who wish
‘to propagandize protests or views have a constitutional right
to do so whenever and however and wherever they please.’”).
21
probable cause is clearly established. See Smith v. Reddy, 101
F.3d 351, 356 (4th Cir. 1996).” Henderson v. Simms, 223 F.3d
267, 273 (4th Cir. 2000). To succeed on their Fourth Amendment
claims, Appellees must establish that the troopers unlawfully
arrested them. Id. An unlawful arrest is one effected in the
absence of probable cause. See, e.g., Draper v. United States,
358 U.S. 307, 310-11 (1959).
As explained above, viewed in the light most favorable to
Appellees, the allegations in the amended complaint plausibly
alleged an absence of probable cause and that the absence of
probable cause would have been clear to a reasonable law
enforcement officer. Thus, the request for qualified immunity
was properly denied on the face of the amended complaint. 12
12
The troopers contend that a reasonable officer
confronted with the same situation as were they at the second
demonstration would have believed that there was probable cause
to arrest. The Eighth Circuit has decided a case with almost
identical facts to the case at bar. The plaintiffs in Frye v.
Kansas City Police Dep’t, 375 F.3d 785 (8th Cir. 2004), were
pro-life demonstrators who were arrested under a Kansas City
ordinance that made it “unlawful for any person to . . . stand .
. . either alone or in concert with others in a public place in
such a manner so as to [o]bstruct any public street, public
highway . . . by hindering or impeding the free and
uninterrupted passage of vehicles, traffic, or pedestrians.” Id.
at 788. The court held that the arresting officers “reasonably
interpreted the ordinance as prohibiting conduct which
distracted drivers and thereby obstructed a public street by
‘hindering or impeding the free and uninterrupted flow of
traffic.’” Id. at 792. The court further held that the arresting
officers were entitled to qualified immunity because (1)
objectively, probable cause was at least arguable; (2)
(Continued)
22
VI.
For the reasons stated herein, the order of the district
court denying qualified immunity is
AFFIRMED IN PART AND REVERSED IN PART.
consultation with a prosecutor prior to an arrest weighs heavily
in favor of immunity; and (3) it is immaterial, for purposes of
the qualified immunity analysis, whether it was the subjective
intent of the arresting officer to suppress the arrestees’
speech. Id. We do not speculate whether the outcome here will
track the outcome in Frye; it suffices to observe that Frye was
decided on motions for summary judgment after discovery, see 260
F.Supp.2d 796 (W.D. Mo. 2003), not on pre-discovery motions to
dismiss.
23
| {
"pile_set_name": "FreeLaw"
} |
Filed 8/27/15 Johnston v. State Personnel Board CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
GLENN JOHNSTON, C075357
Plaintiff and Appellant, (Super. Ct. No.
34201180000792CUWMGDS)
v.
STATE PERSONNEL BOARD,
Defendant;
DEPARTMENT OF CORRECTIONS AND
REHABILITATION,
Real Party in Interest and Respondent.
Plaintiff Glenn Johnston retired from his position as chief dentist at a correctional
facility in 2005. In 2007 and 2008 Johnston applied for eight chief dentist positions at
other correctional facilities. After he was not selected for any of those positions,
Johnston filed a discrimination complaint with defendant State Personnel Board (Board)
under Government Code section 19702.1 The Board dismissed the complaint and
Johnston filed a petition for a writ of mandate and a supplemental petition for a writ of
1 All further references are to the Government Code.
1
mandate in the trial court. The trial court ultimately denied both petitions. Johnston
appeals, challenging the evidence in support of the trial court’s decision. We shall affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From 1996 until his retirement in December 2005, Johnston had served as chief
dentist at the Herman G. Stark Youth Correctional Facility. Prior to that, Johnston was
chief dentist at Camarillo State Hospital from 1988 through 1996. His annual salary was
$123,000, and he had served as chief dentist for 18 years.
In approximately 2005 a class action lawsuit against the Department of
Corrections and Rehabilitation (Corrections) challenged the adequacy of inmate dental
care. Corrections entered into a stipulation to settle the case in 2005 that required
training of dental staff on progressive discipline, appeals, and access to care (the Perez
stipulation). As part of the Perez stipulation, Corrections was required to decrease the
ratio of inmates to dentists, resulting in the need for more dentists. In order to attract
candidates, Corrections obtained approval from the Governor’s office to increase
dentists’ salaries. Chief dentists’ salaries increased from about $123,000 to about
$300,000.
Beginning in 2007 Johnston began applying for chief dentist positions. We
summarize each application and result.
Valley State Prison for Women
In May 2007 Johnston submitted an application for the chief dentist position at
Valley State Prison for Women. As part of the process, Johnston was interviewed by
dentists Jean Chang and Linda Martinez. The interview panel selected Lisa Snauffer,
who had been in an acting capacity for that position for a time.
California Men’s Colony
Johnston applied for the chief dentist position at California Men’s Colony in San
Luis Obispo in July 2007. The interview panel consisted of dentist Linda Martinez and
2
medical doctor Robert Myers. The panel selected the acting chief dentist, Julie Shepard,
for the position.
California Institution for Men
The following month, Johnston submitted an application with the California
Institution for Men in Chino. Dentist Lynda Mixon and Richard Robinson, a dental
program director, interviewed candidates. The panel selected Lawrence Yee to fill the
position. Dr. Yee was interim chief dentist at San Quentin State Prison and had 10 years’
experience as a chief dentist.
Headquarters Policy and Risk Management; Training
In November 2007 Johnston applied for two open positions for chief dentists at
Corrections headquarters, one in policy and risk management, and the other in training.
The interview panel consisted of deputy statewide dental director Changsu Park, D.D.S.,
Linda Martinez, and Richard Robinson.
The panel selected Arthur N. Garbutt for the policy and risk management position.
Dr. Garbutt had been chief dentist at Deuel Vocational Institution (Deuel) and had been
deeply involved in implementing policy pursuant to the Perez stipulation. Dr. Garbutt
was on special assignment and had already been performing the duties of the risk
management position. No candidate was selected for the training position. Instead, an
individual whose career executive assignment had been terminated, William Kuykendall,
had mandatory reinstatement rights to the training position.
California Substance Abuse Treatment Facility and State Prison
Johnston also applied for a chief dentist position at the California Substance Abuse
Treatment Facility and State Prison in Corcoran in February 2008. Health care manager
Linda Martinez and Gail Martinez interviewed potential candidates. Venus Fanous was
recommended for the position based on her experience supervising large staffs.
3
Deuel Vocational Institution
In August 2008 Johnston applied for the chief dentist position at Deuel in Tracy.
Jean Chang and regional administrator Denny Sallade interviewed candidates, but
Johnston was not granted an interview as only current Corrections employees were
supposed to be interviewed under the screening criteria. However, Ralph Beutler, who
was not a current employee, was interviewed.
The panel selected Rosellen Diehl-Hong for the position. Dr. Diehl-Hong was the
acting chief dentist at Deuel at the time and was considered successful in the position.
Ironwood State Prison
Johnston applied for the chief dentist position at Ironwood State Prison in Blythe
in October 2008. The interview panel consisted of regional dental director Lawrence
Hansen, Linda Martinez, and William Kuykendall. They selected James Ward, a
Caucasian male, who had been acting chief dentist at the prison for the previous
17 months. However, the job was reposted a few months later while Dr. Ward was being
investigated. The position was eventually filled in June 2009 by Linda Martinez, who
was reinstated to the chief dentist position after her career executive assignment was
terminated.
Subsequent Litigation
In August 2009 Johnston filed a discrimination complaint with the Board.
Johnston alleged he was subjected to discrimination on the basis of race, Caucasian, and
sex, male, by Corrections because he was not selected for any of the chief dentist
positions he applied for. The Board dismissed the complaint.
Johnston subsequently filed a petition for a writ of mandate in the trial court,
challenging the Board’s decision. The trial court issued a decision denying the petition in
part and granting the petition in part. The court found no evidence of discrimination with
respect to seven of the eight positions. The court found the findings regarding the
position at Deuel were not supported by the evidence. While the Board found Johnston
4
was not selected for the position because another candidate performed better during
interviews, the evidence in the record showed that Johnston did not receive an interview.
The matter was remanded back to the Board to “reconsider the evidence in the record and
make new findings on the issue whether Johnston proved race or sex was a motivating
factor in the decision not to select him for the Chief Dentist position” at the institution.
The Board issued new findings, concluding Corrections did not discriminate
against Johnston when it failed to select him for the chief dentist position at Deuel. It
also found Corrections selected two white males for chief dentist positions for which
Johnston applied.
Johnston filed a supplemental petition for a writ of mandate, appealing the Board’s
decision. The court denied the supplemental petition, finding Johnston failed to come
forward with evidence demonstrating discrimination played a role in the failure to hire
him for the Deuel position. Johnston filed a timely notice of appeal.
DISCUSSION
STANDARD OF REVIEW
We review the Board’s decision under the substantial evidence standard of review.
(California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601,
1611.) We examine the evidence in the administrative record in the light most favorable
to the judgment. We resolve all conflicts in the evidence and draw all inferences in
support of the judgment. Substantial evidence consists of evidence of ponderable legal
significance, reasonable in nature, credible, and of solid value such that a reasonable
person might accept as adequate to support a conclusion. (Young v. Gannon (2002)
97 Cal.App.4th 209, 224-225 (Young).)
We presume that the Board performed its duty. The burden is on the plaintiff to
prove an abuse of discretion by the Board in failing to proceed in the manner required by
law or in making a decision unsupported by substantial evidence. (Young, supra,
97 Cal.App.4th at p. 225.)
5
Discrimination Claims
The Board has jurisdiction to hear disability discrimination complaints filed by
applicants for state employment. (§ 19702.) Grounds for disability discrimination are
the same as those set forth in section 19240, subdivision (a). A Caucasian male may
pursue an employment discrimination case based on race and gender discrimination.
(Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1002.)
Johnston argues Corrections treated him less favorably than other candidates for
the chief dentist positions because of his race and gender. In the absence of direct proof
of discriminatory intent, the Board applies the analytical framework for discrimination
cases developed by the United States Supreme Court in McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792 [36 L.Ed.2d 668]. Under the McDonnell Douglas
framework, when an employee alleges discrimination in employment, the employee must
first establish a prima facie case of discrimination. The employer can then rebut the
employee’s claim by offering a legitimate, nondiscriminatory reason for its employment
decision. In order to prevail, the employee must show that the employer’s proffered
reason is pretextual. (Id. at pp. 802-805.)
The employee bears the burden of persuading the trier of fact that the employer
engaged in intentional discrimination. The ultimate question is whether the employer
intentionally discriminated, and evidence that the employer’s proffered reason is
unpersuasive or contrived does not necessarily establish that the employee’s proffered
reason for termination is correct. Instead, the trier of fact must believe the employee’s
explanation of intentional discrimination, not merely doubt the employer’s explanation.
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 342-343 (Arteaga).)
In other words, the employee will not prevail by simply showing the employer’s
decision was wrong or mistaken, since the crucial factual issue is whether discriminatory
animus motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent. Instead, the employee must demonstrate such weaknesses, implausibility,
6
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its actions that a trier of fact could legitimately find them “ ‘ “ ‘unworthy of
credence’ ” ’ ” and infer that the employer did not act for the asserted nondiscriminatory
reason. (Arteaga, supra, 163 Cal.App.4th at pp. 342-343.)
Trial Court’s Decision
The trial court found Johnston failed to produce sufficient evidence to show he
was denied an interview because of his gender. Several of the interviewed candidates
were male. Corrections also granted Johnston, a male, interviews for seven other
positions. The court concluded: “Thus, it is not reasonable to infer that [Corrections]
denied Johnston an interview because of his gender.”
In addition, the court found no evidence from which to infer Corrections denied
Johnston an interview because of his race. No evidence revealed Corrections refused to
interview any white candidates. Corrections interviewed and recommended a white male
for one of the chief dentist positions. Nor did Johnston provide any evidence suggesting
the interviewers harbored discriminatory animus toward white male candidates. The
court noted the interviewers for the position at Ironwood State Prison, who ultimately
recommended a white male, rated Johnston “less than competitive” for the position, and
in at least three out of the seven positions for which Johnston interviewed, other white
male candidates scored higher than Johnston did. Although Corrections did not select a
white male candidate for the Deuel position, “Johnston presents nothing but speculation
that the decision not to interview him was motivated by his race.”
The court stated that even if Johnston had established a prima facie case for
discrimination, Corrections presented a legitimate, nondiscriminatory reason for its
decision not to interview him: that only current Corrections employees were being
interviewed. Johnston challenged this assertion, arguing that Corrections interviewed at
least one candidate, Dr. Ralph Beutler, who was not a current employee. The trial court
determined: “However, the [Board] found this evidence was not sufficient to show that
7
[Corrections’s] articulated reason was a pretext for discrimination. The [Board’s] finding
is supported by substantial evidence in the record.”
EVIDENCE SUPPORTING THE HIRING DECISIONS
Johnston faults Corrections for failing to have “any standardized system in place
to reliably evaluate the responses of the candidates for the various positions.” According
to Johnston, “the evidence shows that there were significant weaknesses, inconsistencies
and incoherencies in the hiring process that was a pretext for discrimination.” We
consider the evidence surrounding the selection of candidates for each of the positions for
which Johnston applied.
Valley State Prison for Women
Linda Martinez and Jean Chang selected Lisa Snauffer for the chief dentist
position. Dr. Snauffer had been the acting chief dentist at the facility and had knowledge
of the existing policies and procedures. She was familiar with the women’s programs at
the facility and with the challenge of dealing with pregnant inmates. In addition,
Dr. Snauffer had demonstrated an ability to lead that prison group.
Chang expressed disappointment with Johnston’s interview. Despite his
impressive credentials, Johnston “wasn’t able to articulate a lot of that stuff during the
interview.” Chang described Johnston as “rambling” and “poorly organized.” Johnston
lacked the background of working with adults and any familiarity with the policies and
procedures required by the Perez stipulation. Chang’s comments and observations
provide a nondiscriminatory reason for not selecting Johnston.
California Men’s Colony
Julie Shepard was selected for the chief dentist position. Linda Martinez testified
Dr. Shepard performed better during the interview process than Johnston did, providing
very complete and thorough answers. Dr. Shepard exhibited familiarity with the Perez
stipulation and the requirements of running a large institution of 30-plus staff members.
8
Linda Martinez stated that “Dr. Shepard came over -- came into [California Men’s
Colony] when the institution was undergoing a great deal of change, and it was into a
negative environment. She took a negative environment and transposed that into a very
positive environment as an acting Chief. She was able to, as her answers -- my notes
states [sic], she could get people to work and to be happy.”
However, Johnston did not have a strong interview and lacked “the spark, the fire
of a leader.” Johnston lacked experience running a large staff, and his responses during
the interview revealed this deficit. Martinez characterized Johnston’s responses as “rote”
and “mediocre.” Johnston also omitted some important safety aspects of the position and
failed to mention documenting infection control. Martinez’s comments provide a
nondiscriminatory reason for selecting Dr. Shepard over Johnston.
California Institution for Men
The interview panel selected Lawrence Yee for the chief dentist position. Dr. Yee
had previously served as chief dentist for 10 years at the facility and was currently
working as the interim chief dentist at San Quentin State Prison. Interviewer Lynda
Mixon testified Dr. Yee answered questions more thoroughly than did Johnston and
exhibited much better managerial experience. Dr. Yee managed about 30 people when
he was at the institution, while Johnston’s previous posting had a much smaller staff.
During the interview, Johnston gave long, rambling answers. In response to a
question, Johnston failed to explain how he would prioritize staffing issues. He also
could not identify the items in the emergency kit and had difficulty with questions about
handling employee complaints. Mixon’s comments and observations support a
nondiscriminatory reason for hiring Dr. Yee and not Johnston.
Headquarters: Policy and Risk Management
Johnston interviewed simultaneously for both the headquarters policy and risk
management position and the headquarters training position. Arthur Garbutt was selected
for the policy and risk management position. Changsu Park, Linda Martinez, and
9
Richard Robinson interviewed the candidates. Martinez stated Dr. Garbutt had “intimate
knowledge” of the Perez stipulation procedures, which was important for the position.
When Dr. Garbutt was promoted to chief dentist at Deuel, he was instrumental at
implementing the policies required by the stipulation.
Robinson stated they were looking for someone familiar with oversight of a
policy-making program over a large organization. Johnston did not have the skills they
were looking for, since he lacked experience in policy making within a large
organization. Martinez and Robinson provide nondiscriminatory reasons for not hiring
Johnston.
Headquarters: Training
None of the candidates interviewed for this position was selected. Instead,
William Kuykendall was reinstated to that position after his position in a career executive
assignment was terminated. Since it was a mandatory reinstatement, there is no evidence
of discrimination.
California Substance Abuse Treatment Facility and State Prison
Linda Martinez testified that the top two candidates for the position were Venus
Fanous, a female, and Richard Davis, a Caucasian male. The panel selected Dr. Fanous
based on her experience supervising a large staff. Dr. Fanous had “a proven track record
to be able to go in and manage 56 people, who, at times, were having some interpersonal
concerns amongst the staff.” Previously, Dr. Fanous was employed in a large practice,
had been the director of that large clinic, and had worked at two correctional facilities.
Martinez also commented that Johnston’s interview answers indicated he did not
comprehend the difficulties inherent in managing a large staff. In addition, Johnston’s
answers to questions about training and locating missing equipment were found lacking.
The panel’s selection of Dr. Fanous shows no discriminatory bias against Johnston.
10
Deuel Vocational Institution
Johnston was not interviewed for the position at Deuel. He contends Corrections
told him only current employees would be interviewed, yet another retiree, Ralph
Beutler, was granted an interview. This fact points to a discriminatory motive in failing
to interview him.
The Board initially found Johnston was interviewed for the Deuel position but was
not selected because another candidate performed better than Johnston performed during
the interview process. However, Corrections later acknowledged Johnston was never
interviewed for the position. The trial court issued a writ compelling the Board to set
aside its findings in regard to the Deuel position and to make new findings based on the
evidence in the record as to whether Johnston proved he was subject to race or gender
discrimination in regard to that position.
On remand, the Board found Johnston failed to meet his burden of proof:
“Although a white male was not selected for the position, that fact, by itself, is not a
sufficient circumstance to suggest discriminatory motive. No evidence suggested a
direction by [Corrections] management to discriminate against white males, or to select
female or non-white candidates. Thus, one must look to the motives of the panel
members. [Johnston] did not prove that either Sallade or Dr. Chang [the interviewers]
had any discriminatory motive.”
The Board also assumed, for the sake of argument, that Johnston had established a
prima facie case but found Corrections met its burden of producing evidence of
nondiscriminatory reasons for its decision. According to the Board: “[Corrections]
selected Dr. Diehl for the [Deuel] position. Dr. Chang based her decision partly on the
fact that Dr. Diehl was already familiar with [Deuel] procedures and had served as the
Acting Chief Dentist there. Although [Johnston] may disagree with the assessment of his
qualifications compared to the successful candidate, [Johnston] did not demonstrate that
11
there are such weaknesses, inconsistencies or incoherencies to show that [Corrections’s]
reasons were a pretext for discrimination. [Citation.]”
The trial court, in denying Johnston’s supplemental petition for a writ of mandate,
found that even if he established a prima facie case, Corrections articulated a legitimate,
nondiscriminatory reason for its decision not to interview him, namely, “that only current
[Corrections] employees were being interviewed.” The court acknowledged Johnston
attempted to rebut this by showing this explanation was false—that Corrections
interviewed at least one individual who was not a current employee. However, the court
found “the [Board] found this evidence was not sufficient to show that [Corrections’s]
articulated reason was a pretext for discrimination. The [Board’s] finding is supported by
substantial evidence in the record. Accordingly, the petition shall be denied.”
Johnston argues that contrary to the trial court’s determination, the Board’s
decision on remand fails to address “the issue raised by the Trial Court’s Order
remanding the matter to the [Board]—whether he was denied an interview at [Deuel]
because of race and/or gender, or because the interviews were limited to only current
[Corrections] employees.” Therefore, according to Johnston, no evidence supports the
Board’s finding or the trial court’s order that he was not subjected to discrimination at
Deuel because of race and/or gender. We disagree.
Johnston asserts that on remand the issue before the Board was whether he was
denied an interview because of his race and/or gender or because the interviews were
limited to current Corrections employees. However, the trial court’s remand order simply
requires the Board to correct its mistake in finding Johnston was granted an interview for
the Deuel position. The remand order also states the ultimate issue is “whether Johnston
proved race or sex was a motivating factor in the decision not to select him for the Chief
Dentist position at [Deuel].”
In addition, while the Board did not expressly find Corrections’s false explanation
regarding the pool of those interviewed was insufficient evidence of pretext, the Board
12
reviewed the circumstances surrounding the hiring for the Deuel position and found
Johnston failed to show pretext. The fact that Corrections originally provided incorrect
information regarding those interviewed does not rebut or undermine the Board’s finding,
based on all the evidence before it, that Johnston failed to show Corrections’s proffered
explanation amounted to pretext.
Ironwood State Prison
In alleging discrimination on the part of Corrections, Johnston states no Caucasian
males were hired for any of the positions he applied for. However, James Ward, a
Caucasian male, was selected as chief dentist for Ironwood State Prison. He had served
as acting chief dentist for the prior 17 months, supervising 30 to 40 staff members.
Dr. Ward did not ultimately serve as chief dentist due to an ongoing investigation. Linda
Martinez eventually filled the position after she was reinstated when her career executive
assignment was terminated. Again, we find no evidence of the discrimination Johnston
alleges in the filling of the position. Standing alone, the absence of male Caucasian hires
does not compel an inference of discrimination.
Our review of the filling of each of the positions Johnston applied for reveals no
evidence of a discriminatory motive on the part of Corrections. Nor do we find any
evidence of pretext. As the trial court correctly found, the Board’s findings are supported
by substantial evidence.
DISPOSITION
The judgment is affirmed. Corrections shall recover costs on appeal.
RAYE , P. J.
We concur:
HULL , J.
MURRAY , J.
13
| {
"pile_set_name": "FreeLaw"
} |
14 B.R. 644 (1981)
In re CARLA CHARCOAL, INC., Debtor.
Bankruptcy No. 581-00117-S.
United States Bankruptcy Court, W.D. Louisiana.
September 28, 1981.
*645 Henry C. Gahagan, Gahagan & Gahagan, Natchitoches, La., for Percy M. Alexander, Jr.
Joseph W. Milner, Shreveport, La., for The First Nat. Bank of Shreveport.
John F. Simon, Gold, Little, Simon, Weems & Bruser, Alexandria, La., for The Vernon Bank.
Henley A. Hunter, Eatman & Hunter, Billy Pesnell, Sam J. Friedman, Hargrove, Guyton, Ramey & Barlow, Shreveport, La., for Emerson Elec. Co. Inc.
Fred S. Gahagan, Gahagan & Gahagan, Natchitoches, La., for BEPEX Corp.
Jacob D. Landry, Landry, Watkins & Bonin, New Iberia, La., for Central Louisiana Elec. Co.
Eric R. Harrington, Natchitoches, La., for Norman Elec. Inc.
David Epstein, Tracy Whitaker, William Douglas White, Attys., Civ. Div., Dept. of Justice, Washington, D.C., Frances O. Allen, First Asst. U.S. Atty., W.D. La., Shreveport, La., for the U.S.
OPINION
LeROY SMALLENBERGER, Bankruptcy Judge.
A hearing was held on oppositions to the Trustee's application to compel an escrow agent to turn over property of the estate, and the related Government motion to dismiss the bankruptcy proceeding, or to order the Trustee to abandon any interest which the estate might have in the escrow or for relief from the automatic stay of 11 U.S.C. § 362(a).
The Trustee's application to compel turn over was dismissed, without prejudice, because the proceedings should have been by adversary proceeding instead of by application.
The Government's motion to dismiss the bankruptcy was denied. Section 707 of the Bankruptcy Code permits dismissal for cause, but the legislative phrasing indicates that granting of dismissals should be strictly limited. The motion to dismiss is based upon the argument that there are no assets for the estate to distribute but this has not been demonstrated and ignores the jurisdiction of this Court to determine all matters relating to property in which the bankrupt has any interest.
The United States' request for abandonment of the assets of the estate was denied. *646 The Trustee has a responsibility to all creditors, secured and unsecured, to examine the claims of each creditor, determine the validity of these claims and determine whether there is equity for the estate in a particular asset. The Court declines, before the Trustee makes his determination of the validity of all secured creditors' claims, and before all matters to be determined by the Court in connection therewith have been determined, to state that there is no equity for the general estate.[1]
The United States' request that the automatic stay be lifted was denied. According to Bankruptcy Rule 701, any proceeding seeking relief from a stay must be instituted as an adversary proceeding. Moreover, this Court has jurisdiction to determine all matters relating to property in which the bankrupt has an interest and it is in the interest of justice that the matter not be further delayed.
FINDINGS OF FACT
(1) This proceeding was initiated by an involuntary creditors' petition.
(2) A motion for abstention of jurisdiction pursuant to the provisions of 11 U.S.C. § 305 was filed by the debtor, Carla Charcoal, Inc., on February 24, 1981.
(3) A hearing on the motion for abstention of jurisdiction was held on March 30, 1981, at which time the United States joined with the mover-debtor, Carla, in its request for an abstention of jurisdiction and dismissal of the bankruptcy proceeding.
(4) On April 27, 1981, the motion to abstain from jurisdiction and dismiss, filed by the debtor and joined by the United States, was overruled. The Court adjudicated Carla Charcoal, Inc., a bankrupt.
(5) Schedules were filed in due course and a Trustee appointed.
(6) No evidence was presented at this hearing why the previous action of the Court should be overturned.
(7) No evidence was offered at the hearing to establish the amounts owing parties to the escrow agreement, the security to which they are entitled, the validity of the claimed security, the respective ranks of those with valid security or otherwise bearing upon the propriety or impropriety of this Court retaining jurisdiction and proceeding with its proper functions with respect to the debtor's assets and all inquiries relating thereto.
(8) The funds involved are in escrow with The First National Bank of Shreveport (one of the two largest banks in Shreveport), which has a fiduciary obligation to invest the funds to the best advantage, and the escrow funds cannot be disturbed without further order of this Court.
(9) It is to the best interest of the estate that the funds remain with the escrow agent pending determination of the respective interests of the parties to the escrow agreement and the Trustee.
(10) No evidence was offered to support the Government's statement that it will have inadequate protection in this proceeding.
(11) The monies have been in escrow since December 18, 1980 and the United States Government has made no move to have the respective rights of the parties determined in any Court.
(12) It is to the advantage of all concerned that the respective rights of the parties and of the Trustee be determined as expeditiously as possible.
(13) It will save time and serve the interests of all parties and of the judiciary if this Court proceeds to hear and determine the respective rights of the parties to the escrow agreement and of the Trustee.
CONCLUSIONS OF LAW
(1) The application for turn over filed by the Trustee should be denied as not *647 being permissible procedure. Also, it would serve no useful purpose to enter such an order and it should be denied on that ground also.
(2) The funds in controversy are property of the Debtor and this Court has jurisdiction to determine all matters relating thereto, including the rights of the parties thereto, the validity of their respective claims of security, the ranks of their securities and the rights of the Trustee with respect to the funds.
(3) It is to the evident advantage of all concerned that this Court retain jurisdiction and determine these matters and the motions to dismiss, to order the Trustee to abandon and to lift the stay should be denied.
(4) In the interest of justice, this Court should hear and determine all matters relating to these funds as expeditiously as possible, and (upon application of any party at interest) the matter should be fixed for hearing for a convenient time with due notice.
IT IS ORDERED ACCORDINGLY.
NOTES
[1] See Matter of Troy Indus. Catering Service, 2 B.R. 521*, (Bkrtcy.Mich.1980), which stands for the proposition that a prebankruptcy seizure does not divest the debtor of all interest in the property.
* 1 C.B.C.2d 321, 5 B.C.D. 1243.
| {
"pile_set_name": "FreeLaw"
} |
Opinion issued September 28, 2006
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-06-00315-CV
____________
COMMERCE COMMERCIAL LEASING, Appellant
V.
JAMES T. EVANS D/B/A EVANS &FAIR, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 819925
MEMORANDUM OPINION
The parties have filed a joint motion to dismiss their appeal. No opinion has
issued. Accordingly, the motion is granted, and the appeal is dismissed. Tex. R.
App. P. 42.1(a)(2).
All other pending motions in this appeal are overruled as moot. The Clerk is
directed to issue mandate within 10 days of the date of this opinion. Tex. R. App. P.
18.1.
PER CURIAM
Panel consists of Justices Nuchia, Jennings, and Higley.
| {
"pile_set_name": "FreeLaw"
} |
525 F.Supp. 165 (1981)
The BOARD OF EDUCATION OF EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT NO. 202, COOK COUNTY ILLINOIS, et al., Plaintiffs,
v.
ADMIRAL HEATING AND VENTILATION, INC., et al., Defendants.
and
BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 205, COOK COUNTY, ILLINOIS, et al., Plaintiffs,
v.
BORG, INC., et al., Defendants.
and
The STATE OF ILLINOIS, et al., Plaintiffs,
v.
BORG, INC., et al., Defendants.
Nos. 79 C 3046, 79 C 3077 and 79 C 5253.
United States District Court, N. D. Illinois, E. D.
September 30, 1981.
*166 Wildman, Harrold, Allen & Dixon, Max Wildman, Douglas Carlson, Douglas Prochnow, Chicago, Ill., for Getschow defendants.
Edwin C. Thomas, Bell, Boyd & Lloyd, Chicago, Ill., for Economy Mechanical Industries, Inc. and Elmer R. Bruksch, defendants.
John B. Simon, Friedman & Koven, and John E. Burke, Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., for all other defendants.
MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Plaintiffs in these three consolidated[1] class actions charge 22 piping and construction companies and 36 individuals with bidrigging, price fixing and job allocation in the Chicago area from 1956 until 1977 in violation of the Sherman Act. Two sets of defendants (Phillips, Getschow Co., Lee E. Getschow and Roy Getschow, Jr. ["Getschow defendants"] and Economy Mechanical Industries, Inc. and Elmer R. Bruksch ["Economy"]) have filed objections to Magistrate Cooley's May 28, 1981 order (the "Amendment"), which amended Pretrial Order No. 2 (the "Order") to require all defendants to reimburse their designated lead counsel for attorney's fees and other expenses. Defendants Borg, Inc., Jeffrey Berg, Howard Salzman and F. E. Moran, Inc. (represented by the lead counsel) have independently moved to strike portions of the Getschow defendants' April 27, 1981 Memorandum Relating to Motion To Clarify (the "Memorandum") filed before Magistrate Cooley. Finally, in response to this Court's request the parties have commented particularly on the proposed retroactive aspect of the Amendment, and have furnished the Court with statements reflecting the approximate amount of fees involved. For the reasons stated in this memorandum opinion and order:
(1) Getschow defendants' objection to the Amendment is denied, and the Amendment is clarified in certain respects.
(2) Economy's objection to the Amendment is sustained.
(3) Lead counsel's motion to strike is granted.
*167 Objections to the May 28, 1981 Amendment
On May 16, 1980 Magistrate Cooley entered the Order dealing with various aspects of pretrial management of these actions. Paragraph V established lead counsel for plaintiffs and for defendants and a steering committee for defendants. Lead counsel were directed to engage in three types of coordinating activities and the steering committee in three others, including the briefing and argument of motions and the preparation of joint written interrogatories and requests for the production of documents.
On March 3, 1981 Magistrate Cooley amended Paragraph V to include a provision stating that "it would be unfair and inequitable for only the clients of the named defense counsel to bear the total expenses associated with properly executing ... [their] functions." Accordingly he directed that "all defendants shall share equally those expenses" effective nunc pro tunc May 16, 1980, the date the initial Order was entered. Upon request for clarification Magistrate Cooley entered the Amendment May 28, 1981, superseding the March 3, 1981 amendment. It enumerated the expenses covered by the Order and the procedure by which a defendant could "opt out" of participation in certain efforts by lead counsel or the steering committee (see Appendix A).
Getschow defendants object to the portion of Amended Paragraph V requiring assessment of attorneys' fees and expenses against all defendants.[2] They urge that:
(1) Problems of allocation of such expenses would outweigh any advantages obtained under such an arrangement.
(2) Defendants will improperly be placed in adversarial positions relative to each other.
(3) Such an arrangement frustrates a defendant's rights under Fed.R.Civ.P. ("Rule") 10(c).
Economy objects to Amended Paragraph V to the extent that it covers expenses incurred before the date of the Amendment.[3] Defendants favoring the arrangement[4] urge that:
(1) It facilitates a just apportionment of expenses incurred by lead counsel in activities inevitably benefiting all defendants.
(2) Its opt-out clause (embodied in the second quoted sentence) permits any defendant to refuse to reimburse lead counsel or the steering committee for expenses not benefiting that defendant.
This Court concurs with the statement of the American College of Trial Lawyers pertaining to this subject, contained at page 5 of its Recommendations on Major Issues Affecting Complex Litigation (February 27, 1981):
Liaison counsel[5] should not act substantively for a party that has not employed him, and the court should not expect him to do so. The importance of the liaison counsel's position lies in its communication and administrative functions. Liaison *168 counsel should be reimbursed for time and expense by the parties for whom they are acting, for services rendered and expenses incurred.
Stated differently, liaison (or lead) counsel should not act on behalf of parties not wishing to use their representation, nor conversely should such parties be required to pay for services they do not employ.
Had the Amendment subjected all defendants to assessment without exception, that principle plainly would be violated. But the Amendment allows a defendant to opt out of the reimbursement obligation where lead counsel's substantive actions do not comport with its own wishes. That arrangement may be viewed as providing each defendant the opportunity to employ lead counsel by acquiescence in their actions or not to do so by making the requisite notice of disavowal.
One refinement should be understood in applying the Amendment, however. It would be unfair for a defendant to exercise a nominal opt-out while still deriving the full substantive benefit of lead counsel's efforts. That would not abate the free-rider concerns that led to the Amendment in the first instance. Accordingly it should be understood that an opt-out disavowal will insulate a defendant from cost-sharing only where that disavowal results in the defendant's not sharing the consequences of the legal position taken on behalf of the class.
Under such circumstances Magistrate Cooley's Order appears both fair and consistent with the discretion to employ or not to employ counsel to which defendants are entitled.[6] As to the possible "apportionment of expense" problems to which the Getschow defendants allude, if they arise the new Magistrate (or this Court) may of course enter further appropriate orders on proper application. In any case such claimed administrative burdens are purely speculative and insufficient to justify reversal of the Amendment.
In one respect, though, the Amendment cannot be upheld. Despite the strong equities supporting its retrospective effectiveness, the law is to the contrary. It is familiar doctrine that a nunc pro tunc order is not a permissible synonym for retroactivity but rather is limited to current correction of the record to speak an earlier truth: an order made earlier but not formally entered. Crosby v. Mills, 413 F.2d 1273, 1277 (10th Cir. 1969); Rardin v. Messick, 78 F.2d 643, 645 (7th Cir. 1935). Instead then the Court must look for power to assess fees against members of the defendant class. And on that score the American Rule (see Roadway Express Co. v. Piper, 447 U.S. 752, 759, 100 S.Ct. 2455, 2460, 65 L.Ed.2d 488 (1980); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 1621-22, 44 L.Ed.2d 141 (1975)) bars entry of such an assessment.[7]
In principal part the denial of retroactive reimbursement serves to benefit non-participating class members as free riders. But the Court is also mindful of some force in *169 the argument, advanced on behalf of some class members, that had they known of the potential of being assessed for lead counsel's fees[8] they would have conducted their own handling of the litigation differently. In any case, because of the limitations imposed by existing law the Amendment is hereby modified so as to become effective May 28, 1981, the date of its entry.
Borg's Motion To Strike Portions of the Getschow Defendants' Memorandum
Lead counsel representing Borg has moved to strike those portions of Section B of the Getschow defendants' Memorandum that state:
(1) Lead counsel directly benefits from controlling the litigation as he sees fit (par. (c)).
(2) Various defendants do not agree with group activities they would finance under the Order (par. (d)).
(3) Various defendants have already acted contrary to the decisions of lead counsel (par. (e)).
Counsel claims those statements are false and constitute "scandalous matter" and should therefore be stricken under Rules 11 and 12(f).
Borg's counsel's motion is granted because the complained-of language may be read as impugning the integrity of lead counsel as an unfair and inaccurate assertion of unprofessional conduct. Getschow defendants have said that was not their intention, but a fair reading of their statements supports the construction that they improperly charge inappropriate motivations to lead counsel. So that the record may be entirely clear on that score without having to refer to a disclaimer found only in a later-filed separate document, the offending language will be stricken. Getschow defendants are ordered (and given leave) to withdraw their original Memorandum from the file and submit for filing a revised memorandum without the language objected to by Borg, such submission to be made by October 19, 1981.
Conclusion
Getschow defendants' objections to Magistrate Cooley's May 28, 1981 order are denied. Economy's objection is sustained in that the provision for sharing of expenses is made effective May 28, 1981 rather than May 16, 1980. Borg's counsel's motion to strike portions of Getschow defendants' Memorandum is granted and Getschow defendants are directed to comply with the immediately preceding paragraph of this opinion.
APPENDIX A
For purposes of this order, the term "total expenses" includes: (a) customary administrative (office-type) expenses; (b) reasonable fees and expenses for attorneys and paralegals engaged in performing administrative functions (telephoning, letter writing, and other similar coordinating activities); and (c) reasonable fees and expenses for attorneys and paralegals engaged in the research and preparation of joint briefs and joint discovery responses that inure to the benefit of all defendants. All defendants will share equally fees and expenses of type (a) and (b). No defendant will be exempt from the obligation to share equally type (c) fees and expenses, unless such defendant, in a formal pleading filed with the court within 7 days of the filing date of a joint brief or joint discovery response, specifically disavows all or part of such joint brief or joint response. If such defendant disavows the whole of such joint brief or joint response, such defendant will not be obliged to share any part of type (c) fees or expenses related thereto. If such defendant disavows only a portion of such joint brief or joint response, such defendant shall share equally the type (c) fees and expenses connected with the undisavowed portion of the joint brief or joint response.
NOTES
[1] 79 C 5253 is consolidated for discovery purposes only.
[2] After the Court's initial indication of its ruling during a status hearing, counsel for Windsor Heating Company and Clemens Sharp and counsel for Economy filed short memoranda objecting to the same provisions.
[3] In response to the Court's invitation for further submissions on the retroactivity question, counsel for Edward Usher and Ideal Heating Company has written a letter asserting the same kind of arguments made by Economy. Though the Usher-Ideal letter might be read more broadly to support the Getschow argument as to prospective application of the Amendment, the Court does not find it any more persuasive on that interpretation than the Getschow position.
[4] There are some 50 defendants in these cases. Only a very small handful have expressed any opposition to the Amendment.
[5] "Liaison" counsel and "lead" counsel are labels often attached to the performance of different functions. Compare Manual For Complex Litigation §§ 1.90 and 1.92 (1978). There lead counsel "are the counsel chosen by the group of parties having a common interest to brief and argue motions...[1] to prepare written interrogatories...." and engage in other substantive actions on behalf of the group. Liaison counsel are said to engage primarily in administrative activities designed to streamline processing of the litigation. However, the principle stated above applies with equal force to either arrangement.
[6] Previous non-reimbursed actions by lead counsel and the steering committee, in which the Getschow defendants joined, suggest at the very least that the Amendment will result in economies and reflect a just apportionment of expenses.
[7] Although scarcely as rewarding as the financial recognition that reimbursement would have meant to his clients, special thanks are due to John B. Simon, Esq., one of the lead counsel. With a keen sense of the proprieties involved, Mr. Simon had simply tendered the Magistrate's recommendation without arguing in its favor (it was of course to his clients' benefit to obtain reimbursement of legal expense but could also be viewed as generating legal business for Mr. Simon and his fellow lead counsel). When directed by the Court to address the legal question of retroactivity Mr. Simon in the same fashion that has marked the service of lead counsel throughout provided the Court with a thoughtful analysis of such law as existed. Unfortunately from a perspective of fairness, the authorities establishing exceptions to the American Rule do not embrace retroactivity in the present posture of these cases. This ruling is however without prejudice to reassertion of the request if future developments in these actions demonstrate that lead counsel's efforts have in fact produced the kind of benefits to the class that existing case law has found necessary to support an award of fees.
[8] It must be remembered that the Order provided for lead counsel but did not hint at the imposition of their fees on the class.
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-20244
Conference Calendar
__________________
CURTIS MACK LEWIS,
Plaintiff-Appellant,
versus
JAMES A. COLLINS; M. BRUCE THALER,
Warden; JERRY G. BRISHER; JOHN DOE,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-95-CV-3276
- - - - - - - - - -
June 25, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Curtis Mack Lewis, #646507, appeals the dismissal of his
civil rights action pursuant to 28 U.S.C. § 1915(d). Lewis
contends that the district court erred in concluding that he had
not alleged that he was deprived of adequate medical care in
violation of the Eighth Amendment.
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
No. 96-20244
-2-
Even if we liberally construe Lewis' complaint as alleging
an Eighth Amendment violation, the claim lacks merit. Lewis'
Eighth Amendment claim against the defendants in their official
capacities is barred by the Eleventh Amendment. See Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984).
Further, Lewis' claim against the defendants in their individual
capacities is equally unavailing because Lewis does not allege
personal involvement or a causal connection between their actions
and the alleged violation. See Thompkins v. Belt, 828 F.2d 298,
303-04 (5th Cir. 1987).
Lewis does not address on appeal his claim against the
correctional officers concerning the injury to his arm, and it is
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). The district court did
not abuse its discretion in dismissing the action as frivolous.
See Denton v. Hernandez, 504 U.S. 25, 31-33 (1992); 28 U.S.C.
§ 1915(d).
The appeal is without arguable merit and thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. 5th Cir.
R. 42.2. We previously warned Lewis in Lewis v. Collins, No.
95-20899 (5th Cir. Feb. 27, 1996), that further frivolous appeals
would invite the imposition of sanctions and cautioned him to
review any pending appeals to ensure that they did not raise
frivolous arguments. Lewis has not heeded this warning.
No. 96-20244
-3-
Accordingly, Lewis is barred from filing any pro se, in forma
pauperis, civil appeal in this court, or any pro se, in forma
pauperis, initial civil pleading in any court which is subject to
this court's jurisdiction, without the advance written permission
of a judge of the forum court; the clerk of this court and the
clerks of all federal district courts in this Circuit are
directed to return to Lewis, unfiled, any attempted submission
inconsistent with this bar.
APPEAL DISMISSED; SANCTION IMPOSED.
| {
"pile_set_name": "FreeLaw"
} |
435 F.Supp. 5 (1976)
BROWN-FORMAN DISTILLERS CORP. et al., Plaintiffs,
v.
F. David MATHEWS, Secretary of Health, Education and Welfare, et al., Defendants.
Civ. A. No. 76-0042-0.
United States District Court, W. D. Kentucky, Owensboro Division.
August 31, 1976.
*6 Bert T. Combs, E. L. Galloway, Tarrant, Combs & Bullitt, Louisville, Ky., Charles N. Brower, White & Case, Washington, D.C., for plaintiffs.
George J. Long, U.S. Atty., Western District of Ky., Louisville, Ky., for defendants.
MEMORANDUM OPINION
JAMES F. GORDON, Senior District Judge.
Plaintiffs[1] in this action seek a declaratory judgment that neither the Food and Drug Administration, hereinafter FDA, nor the Department of Health, Education and Welfare possesses the jurisdiction or authority to require or to regulate the labeling[2] of alcoholic beverages. They also *7 seek injunctive relief to prohibit the application to such beverages of the labeling provisions of the Federal Food, Drug and Cosmetic Act of 1938, 21 U.S.C. § 301, et seq., hereinafter the 1938 Act, and related regulations promulgated by FDA.
American government in the twentieth century has grown far beyond the initial three branches of government envisioned and established in Articles I through III of the United States Constitution. This growth has largely been the result of the rapid multiplication of government bodies called administrative agencies.
Administrative agencies oversee or regulate in the areas which have been delegated to them. Theoretically each agency has its own particular area of concern and its jurisdiction is limited to that area. Sometimes, however, the body delegating authority to the agency writes the agency's enabling act in such a manner that there is an actual or apparent overlap of jurisdiction over a particular subject matter between two agencies. Therein lies this case.
This litigation represents several questions including whether one administrative agency, the Bureau of Alcohol, Tobacco and Firearms, hereinafter BATF, has exclusive jurisdiction to regulate the labeling of alcoholic beverages or whether such labeling regulation rests concurrently with the BATF and the FDA. Amazingly this particular query has taken nearly forty years to reach the federal courts. The reason for this delay is readily apparent once the factual background concerning this case is known.
To understand fully the significance of recent events involving the parties in this lawsuit it is necessary to travel back to 1935. In that year Congress passed legislation known as the Federal Alcohol Administration Act, 27 U.S.C. § 201, et seq., hereinafter called the 1935 Act. There is no question but that this legislation extends authority to regulate labeling of alcoholic beverages to the Secretary of the Treasury, who in turn has delegated that authority to the BATF. In 1938 Congress enacted the Federal Food, Drug and Cosmetic Act, supra. Under the 1938 Act Congress granted the FDA affirmative labeling jurisdiction over "food." "Food" was defined, in part, as "articles used for . . . drink for man . . .." 21 U.S.C. § 321(f). Given the expansive definition of food the FDA believes that it has concurrent jurisdiction with the BATF to regulate the labeling of alcoholic beverages.
Recognizing an apparent potential for conflicting and redundant regulatory action over the labeling of alcoholic beverages arising from the seemingly overlapping jurisdictional grants set forth in the 1935 and 1938 Act, the FDA published on April 11, 1940 (only four months after the effective date of 21 U.S.C. § 343(i) requiring for the first time ingredient labeling of all "food"), Trade Correspondence No. 224, wherein the agency declared:
"While we have indicated that cordials, liquluers, wine and whiskey are subject to the Act [the 1938 Act], we will continue as in the past to leave to the Federal Alcohol Administration the regulation of the labeling of these alcoholic beverages under the more specific Federal Alcohol Administration Act.
"While beer is classed as food under the Act and would, therefore, be subject to the adulteration and misbranding provisions of that Act when shipped within its jurisdiction, we expect to continue our policy of not duplicating the work of the Federal Alcohol Administration with respect to the labeling of such products. That Administration, as you know, is charged with the enforcement of specific legislation dealing with alcoholic beverages."
1 Toulmin, Law of Food, Drugs, and Cosmetics, Section 109 at 157 (1963).
For thirty-five years, from 1940 until 1975, the FDA never took any significant affirmative steps to regulate the labeling of alcoholic beverages. During this same period *8 BATF was actively engaged in regulating all aspects of the labeling of alcoholic beverages. See 27 C.F.R. Parts 4, 5 and 7.[3]
On October 8, 1974, FDA and BATF entered into a Memorandum of Understanding confirming that BATF would continue to have the primary responsibility for the regulation of the labeling of alcoholic beverages. 39 Fed.Reg. 36127. This Memorandum of Understanding also stated that the BATF in consultation with FDA was developing comprehensive ingredient labeling regulations with respect to distilled spirits, wine and malt beverages pursuant to the 1935 Act which regulations would be in consonance with the 1938 Act and regulations promulgated thereunder. These proposed regulations with respect to ingredient labeling were published by BATF on February 11, 1975. 40 Fed.Reg. 6349-6360.
For six days BATF held public hearings with respect to the proposed ingredient labeling regulations during which the agency, in accordance with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553, considered the views of industry representatives, consumer groups and nonindustry experts, including in excess of 1000 written comments. Having extensively studied the question BATF in early November, 1975, withdrew its ingredient labeling proposals. The agency based its withdrawal on five explicit findings:
. . . First, that it appears the cost of ingredient labeling to the industry, and ultimately to the consumer, would be excessive in relation to the benefits received.
* * * * * *
Second, the content of alcoholic beverages is extensively regulated at the present time.
* * * * * *
Third, the uniqueness of manufacturing processes of alcoholic beverages is such that it makes labeling of their ingredients of little value and, in certain cases, even misleading.
* * * * * *
Fourth, representations were made that ingredient labeling requirements would hinder the on-going multilateral trade negotiations in expanding international trade.
* * * * * *
Finally, ingredient labeling is supported by only a small segment of the public.
* * * * * *
In view of the foregoing, we have concluded that the public interest would not be served by the adoption of the proposed amendments at this time.
40 Fed.Reg. at 52613.
Within weeks of the BATF's decision to withdraw its notice of proposed rulemaking, the FDA acted. The FDA issued a ruling announcing that "because of [BATF's decision not to require ingredient labeling] the memorandum of understanding [with BATF] has been terminated by FDA." The notice then stated:
This notice advises manufacturers and other affected persons that FDA will take regulatory action to enforce the food labeling requirements of the Federal Food, Drug, and Cosmetic Act, and regulations promulgated thereunder, in respect to alcoholic beverages shipped in interstate commerce after January 1, 1977.[4]
40 Fed.Reg. at 54455. Prior to the publication of this decision by FDA, no notice or opportunity to comment were accorded to any interested persons.
*9 Given the above-stated action by the FDA the plaintiffs believe they are confronted with two varying and conflicting regulatory regimes established by two different administrative agencies pursuant to two different statutes; hence, they filed suit for declaratory and injunctive relief.
The case is now before us on cross-motions for summary judgment.[5] To analyze properly the question whether the BATF has exclusive jurisdiction over regulating labeling of alcoholic beverages or whether such jurisdiction is held concurrently with the FDA, the Court must examine both the legislative history of the 1935 and 1938 Acts and the statutes themselves.
Immediately after the repeal of the Prohibition Amendment, the 18th Amendment to the United States Constitution, in 1933, by the 21st Amendment, President Roosevelt created by executive order the Federal Alcohol Control Administration, hereinafter FACA, which was to regulate the liquor industry until Congress could enact new legislation. Exec. Order No. 6474 (Dec. 4, 1933). The Supreme Court, however, held unconstitutional the National Industrial Recovery Act of 1933, 48 Stat. 195, under which the FACA had been created. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).
Recognizing the absence of a regulatory body for the alcoholic beverage industry, Congress took immediate action and commenced work on legislation which eventually was signed into law on August 29, 1935, only three months after the Schechter decision.
The Department of Agriculture, of which FDA was a part, actually recommended to Congress that special legislation be enacted concerning regulation of the liquor industry. The Secretary of Agriculture stated:
Misbranding of beverage whisky amounting to definite misrepresentation prompts administrative action. However, the character of the liquor traffic obviously makes special legislation necessary.
Rep. of Sec. of Agric. (1934) at 85.
H.R. 8870, which was to become the 1935 Act, was reported favorably to the House by the Ways and Means Committee. It was noted by the committee that existing laws including the food and drug laws (which presumably was a reference to the Pure Food and Drug Act of 1906, 34 Stat. 768, hereinafter 1906 Act) were insufficient. H.R.Rep. No. 1542, 74th Cong. 1st Sess. at 3 (1935). The Committee insisted the new legislation must include affirmative labeling provisions. It stated:
They . . . must make provision for informing the consumer adequately as to the identity and quality of the product, its alcoholic content, the net contents of the package, and the person responsible for the package or the advertisement.
Id. at 12.
Hence, the 1935 Act specifically was to include and did include labeling authority not only to prohibit falsity and deception, which was the extent of the labeling authority possessed by the FDA under the 1906 Act; but, the 1935 Act expanded the scope of labeling authority so that the BATF could require, among other things, the identity and quality of the product and the net contents of the package. In brief, it is patent that Congress placed in the hands of the Secretary of the Treasury and through him the BATF affirmative labeling authority over alcoholic beverages.
Does the legislative history of the 1938 Act demonstrate that Congress intended to give the FDA concurrent jurisdiction over regulating the labeling of alcoholic beverages?
S. 5, 75th Congress, was the bill which was enacted into law on June 25, 1938, under the title of the Federal Food, Drug and Cosmetic Act. As introduced the bill contained the following definition of "food":
The term "food" includes all substances and preparations used for, or entering *10 into the composition of, food, drink, confectionary, chewing gum, or condiment for man or other animals.
Sec. 2(g), S. 5, reprinted in Dunn, Federal Food, Drug, and Cosmetic Act, G. E. Stechert & Co., New York (1938) at 638, sometimes hereinafter termed Dunn.
The definition of food remained unchanged when the bill was referred to the Commerce Committee. The bill also contained this statement:
For purposes of enforcement of this Act, records kept by the Treasury Department in accordance with laws, and regulations thereunder, relating to alcoholic beverages and medicinal liquors, shall be open to inspection by any official of the Department of Agriculture duly authorized by the Secretary of Agriculture to make such inspections.
Section 25(c).
This bill, as passed by the Senate on March 9, 1937, was sent to the House of Representatives where it was referred to the Committee on Interstate and Foreign Commerce. The bill was reported by the Committee, with amendments, on April 14, 1938. The amendments made by the House Committee included minor changes in the definition of "food" and in the provision concerning access to records.
The definition of "food," as enacted is:
The term "food" means (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.
21 U.S.C. § 321(f).
The access to records provision upon enactment stated:
For purposes of enforcement of this chapter, records of any department or independent establishment in the executive branch of the Government shall be open to inspection by any official of the Department [of Agriculture] duly authorized by the Secretary to make such inspection.
21 U.S.C. § 372(c).
The House Committee's report also included the following provision concerning the scope of the word "food":
The definition of food is simply a clarification of the definition in the Food and Drugs Act of June 30, 1906.
Committee on Interstate and Foreign Commerce, House of Representatives Report No. 2139, 75th Congress, 3d Session, April 14, 1938, (Dunn at 815ff, 817).
Much dispute within the parties' able briefs has centered on the remarks of Congressman Virgil Chapman, a representative from the Commonwealth of Kentucky, during hearings on what eventually became the 1938 Act. Congressman Chapman, the Chairman of the House subcommittee which held hearings on the 1938 Act, addressed the following question to the State Health Commissioner of Kentucky:
Mr. Chapman: Doctor, what would be your opinion, if I might ask, of an amendment which I expect to have, or attempt to have, written into this bill which would extend its provisions so as to include whisky and require adequate labeling that would disclose the various ingredients contained in a bottle that is labeled as `whisky,' so as to show what proportion of it is whisky and what proportion of it is water. . . .
Hearings on S. 5, H.R. 6906, 8805, and 8941 before Subcom. of House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess. at 106 (1935).
During this discussion of the pending legislation Congressman Cole interjected the following comment:
Might I say we passed in the House a very drastic alcohol-control bill yesterday, and it strikes me that it is more properly the place for any subject dealing with whisky.
Id. at 107.
Congressman Chapman's remark focuses on another important aspect of the legislative history of the 1938 Act. From 1933 until 1938 Congress worked on several bills to amend the 1906 Act. During this time Mr. Chapman led several attempts to amend the proposed bills to include a *11 "straight" whiskey amendment. The purpose of his "straight" whiskey amendment was to make it impossible for "blended" whiskey to be labeled and sold as whiskey. The "blended" whiskey interests, however, were very strong in the Senate and the outcome of Mr. Chapman's attempts to amend these bills was that they were not enacted into law.
Legislative history is only one tool by which the Court can uncover congressional intention. Another device is to review the statutory language itself. In fact review of the legislative enactments themselves is the keystone of statutory construction.
The 1935 Act, among other things, sets forth criminal sanctions for any person who sells, receives or ships "distilled spirits" or "wine" unless such alcoholic beverages are bottled, packaged and labeled pursuant to the regulations prescribed by BATF with respect to packaging, marking, branding, and labeling in addition to size and fill of container.
In 27 U.S.C. § 205(e) Congress authorized the Secretary of the Treasury to prescribe such labeling regulations:
(1) as will prohibit deception of the consumer with respect to such products or the quantity thereof and as will prohibit, irrespective of falsity, such statements relating to age, manufacturing processes, analyses, guarantees, and scientific or irrelevant matters as the Secretary of the Treasury finds to be likely to mislead the consumer;
(2) as will provide the consumer with adequate information as to the identity and quality of the products, the alcoholic content thereof (except that statements of, or statements likely to be considered as statements of alcoholic content of malt beverages are prohibited unless required by State law and except that, in the case of wines, statements of alcoholic content should be required only for wines containing more than 14 per centum of alcohol by volume), the net contents of the package, and the manufacturer or bottler or importer of the product;
(3) as will require an accurate statement, in the case of distilled spirits (other than cordials, liqueurs, and specialties) produced by blending or rectification, if neutral spirits have been used in the production thereof, informing the consumer of the percentage of neutral spirits so used and of the name of the commodity from which such neutral spirits have been distilled, or in case of neutral spirits or of gin produced by a process of continuous distillation, the name of the commodity from which distilled;
(4) as will prohibit statements on the label that are disparaging of a competitor's products or are false, misleading, obscene, or indecent; and
(5) as will prevent deception of the consumer by use of a trade or brand name that is the name of any living individual of public prominence, or existing private or public organization, or is a name that is in simulation or is an abbreviation thereof, and as will prevent the use of a graphic, pictorial, or emblematic representation of any such individual or organization, if the use of such name or representation is likely falsely to lead the consumer to believe that the product has been indorsed, made, or used by, or produced for, or under the supervision of, or in accordance with the specifications of, such individual or organization . . ..
In addition Congress in the final paragraph of 27 U.S.C. § 205(e) enacted a program requiring the Secretary of the Treasury to approve all labels which were to be affixed to bottles filled with distilled spirits and wines, if such beverages pass through interstate or foreign commerce.
Three years later Congress pursuant to the 1938 Act delegated affirmative labeling authority to the FDA. The 1938 Act makes it a misdemeanor and, in certain cases, a felony to deliver or to receive in interstate commerce any "misbranded" "food." Failure to comply with the 1938 Act authorizes the seizure of the "food."
As stated above, "food" as defined in the 1938 Act means:
*12 (1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article.
21 U.S.C. § 321(f).
The ingredient labeling authorization explicitly appears within the 1938 Act. It states:
"A food shall be deemed to be misbranded
(i) If it is not subject to the provisions of subsection (g) of this section [authorizing promulgation of "standards of identity"] unless its label bears (1) the common or usual name of the food, if any there be, and (2) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings without naming each: Provided, That, to the extent that compliance with the requirements of clause (2) of this subsection is impracticable, or results in deceptions or unfair competition, exemptions shall be established by regulations promulgated by the Secretary."
21 U.S.C. § 343(i).
The question now becomes: Given the statutory language found in the 1935 and 1938 Acts and the applicable legislative history, did Congress intend to grant labeling jurisdiction over alcoholic beverages exclusively to BATF or concurrently between BATF and FDA. This is a question of first impression.[6]
We agree with the defendants that the "plain meaning" of the definition of food under the 1938 Act includes alcoholic beverages. Unfortunately, given the facts of this case the "plain meaning" of the word "food" as defined in the 1938 Act contributes little to our understanding of whether Congress intended the BATF to have exclusive jurisdiction over the labeling of alcoholic beverages or whether Congress intended BATF and FDA to have concurrent jurisdiction in that area. See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). We also concede that Congress did not explicitly exempt alcoholic beverages from the purview of the 1938 Act, as it did "meat and meat products." 21 U.S.C. § 392(a). In addition we concur with the defendants that no provision in the 1938 Act limits the FDA's authority over alcoholic beverages to enforcing the adulteration provisions and not the misbranding (labeling) sections of the Act. Notwithstanding our agreement with these statements we are fully convinced that it was Congress' intention to place exclusive jurisdiction to regulate the labeling of alcoholic beverages in BATF. We base this conclusion on the contention that Congress impliedly excepted alcoholic beverages from the misbranding provisions of the 1938 Act. The Court believes this determination is supported by (1) the legislative history of the 1935 and 1938 Acts; (2) the statutes themselves; and (3) the actions of the FDA and BATF from 1938 to 1975.
Undoubtedly the 1935 Act is "special" legislation designed to deal with regulating the alcoholic beverage industry. At the time that act was passed by Congress it was generally recognized that the 1906 Act was not sufficient to regulate the newly legitimized alcoholic beverage industry. The 1935 Act is directed entirely at governmental *13 control and regulation of alcoholic beverages. Importantly, the Congress specifically considered whether to give the Secretary of the Treasury affirmative labeling authority; and, it concluded in the affirmative by drafting a comprehensive provision in excess of 1,000 words dealing with the Secretary's labeling authority. 27 U.S.C. § 205(e).
In contrast the 1938 Act is broad in scope. Significantly, during the legislative discussions concerning what was to become the 1938 Act the subject of alcoholic beverages is rarely mentioned. When alcoholic beverages were discussed it was generally in relation to the "straight" whiskey amendments.
Congressman Chapman's remarks concerning an early draft of the 1938 Act indicates he did not believe that alcoholic beverages fell within the labeling sections of the proposed legislation.[7] He stated:
Mr. Chapman: Doctor, what would be your opinion, if I might ask, of an amendment which I expect to have, or attempt to have, written into this bill which would extend its provisions to include whisky and require adequate labeling that would disclose the various ingredients contained in a bottle that is labeled `whisky' . . ..
Emphasis added. Hearings on S. 5, H.R. 6906, 8805, and 8941, Subcommittee of House Committee on Interstate and Foreign Commerce, 74th Congress, 1st Session at 106 (1935). Obviously, the congressman did not think the draft of the bill included whiskey within the misbranding (labeling) sections of the act because he thought an amendment was needed to extend the legislation to include whiskey labeling before that subject would be covered. Congressman Chapman's amendment, which was introduced as part of his "straight" whiskey fight, was defeated. The fact that Congressman Chapman's statement was made during discussions of an early draft of the 1938 Act does not materially limit its relevance because no showing was made by the defendants that the remarks would not equally have been applicable to the draft which actually became the 1938 Act.
The statutes themselves demonstrate Congress' intention to place exclusive jurisdiction over the regulation of alcoholic beverage labeling in the Secretary of the Treasury, and through him the BATF. The 1935 Act is specific legislation dealing directly with the alcoholic beverage industry. The 1938 Act is broad in scope and can be argued to apply to alcoholic beverages only because the word "food" was defined expansively.
A basic rule of statutory construction to be applied to resolve a conflict between two different enactments each of whose literal terms cover a specific subject is that "where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one . . .." Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). The principle has been recently reaffirmed in Radzanower v. Touche, Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) wherein the Court stated:
"It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. . . . `The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.' T. Sedgwick, The Interpretation and Construction *14 of Statutory and Constitutional Law 98 (2d ed. 1874)."
426 U.S. at 153, 96 S.Ct. at 1992-1993.
The defendants argue that the above-stated statutory construction device does not apply to this case. They contend:
Only if there is irreconcilable conflict between two statutes may a court consider the extraordinary ruling that one does not apply to a subject that it would otherwise encompass. FDA regulation of the labeling of alcoholic beverages under the FDA Act is not in conflict with BATF regulation of alcoholic beverage labeling so as to justify reading into the FDA Act an exemption that is nowhere expressed.
Defendants' Rejoinder Brief at 4. (Original emphasis).
Notwithstanding the defendants' argument to the contrary there is direct conflict between the 1935 and 1938 Acts. This conflict is not likely to seem irreconcilable to the agency seeking to extend its largess into an area not previously regulated by it; however, the conflict appears to be irreconcilable to the Court and certainly to the plaintiffs, the parties being regulated.
The 1935 Act requires the Secretary of the Treasury to prohibit by regulation certain statements on labels where those statements are "likely to mislead the consumer," even though they may not be false. 27 U.S.C. § 205(e)(1) (Emphasis added). See also 27 C.F.R. 5.42(a)(1). In fact, one of the five explicit reasons set forth by the BATF in rejecting the idea of ingredient labeling for alcoholic beverages was that in certain cases ingredient labeling would be misleading. The 1938 Act, on the other hand, requires the labeling of all ingredients regardless of the fact that such labeling may be potentially misleading. Only if the FDA grants an "exemption" from its basic all-inclusive ingredient labeling requirements can the regulated party fail to list all ingredients on the product.
Another statutory conflict deals with information concerning the alcoholic content of the beverage. The 1935 Act declares that BATF shall promulgate such regulations "as will provide the consumer with adequate information as to the . . . alcoholic content thereof . . .." 27 U.S.C. § 205(e)(2). No similar requirement is found in the 1938 Act. 21 U.S.C. § 343(e)(2) merely requires a statement of the total contents of the package. 27 U.S.C. § 205(e)(2) also specifically requires that statements of the alcoholic content of malt beverages are prohibited unless required by state law. In the case of wines statements of alcoholic content may be required only for wines containing more than 14% of alcohol by volume. 27 U.S.C. § 205(e)(2). No comparable provisions exist in the 1938 Act.
Albeit FDA as a regulator can argue that such statutory conflicts are not irreconcilable, it cannot be denied that the labeling requirements of the 1935 and 1938 Acts, as construed by the BATF and FDA through promulgated regulations, subject the plaintiffs to "duplication and inconsistent standards." United States v. National Ass'n of Securities Dealers, 422 U.S. 694, 735, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975). In other words the labeling regulations promulgated by each agency pursuant to its statutory authority highlight the incompatibility which exists between the regulatory schemes of the 1935 and 1938 Acts.
Of course, the first regulatory consistence is that which gives rise to this lawsuit. The BATF after extensive hearings on the question of whether there should be ingredient labeling of alcoholic beverages withdrew its proposal to require such labeling. The FDA then announced that it would require ingredient labeling, as mandated by the 1938 Act.
Both statutes require that a statement of the net contents of the package appear on the label, 21 U.S.C. § 343(e)(2), 27 U.S.C. § 205(e)(2), but the regulations promulgated by the BATF and FDA as to this requirement are in conflict. FDA requires that the label state the volume of liquid measured at 68 deg. F., 21 C.F.R. 1.8(b)(2)(iii), whereas BATF requires measurement at 60 deg. F., 27 C.F.R. 5.11. Next, FDA allows the declaration of quantity to appear blown *15 into the surface of the bottle, rather than shown on the label, only when all required label information so appears. 21 C.F.R. 1.8(b)(h). In contrast, BATF allows the quantity to appear by itself on the bottle. 27 C.F.R. 5.38(a). Finally, the respective regulations contain inconsistent language with respect to the size of the declaration of contents required and as to the form of words that must be used to state the contents. Compare 21 C.F.R. 1.8b(h) with 27 C.F.R. 5.38(a), and 21 C.F.R. 1.8b(j)-(n) with 27 C.F.R. 6.38(b).
There are also conflicting regulations concerning the identity of manufacturers, bottlers and importers. These differences stem from the conflicting requirements of the Acts. Compare 27 U.S.C. § 205(e)(2) with 21 U.S.C. § 343(e)(1). These statutory conflicts are magnified because of the regulations. The FDA requires that the "declaration of the name of the manufacturer, packer, or distributor shall be deemed to be satisfied, in the case of a corporation, only by the actual corporate name. . . ." 21 C.F.R. 1.8a(b) (Emphasis added). BATF requires under its regulations that "the name (or trade name)" of the bottler, 27 C.F.R. 5.36(a)(1), or distiller, 27 C.F.R. 5.36(a)(2), or rectifier, 27 C.F.R. 5.36(a)(3), must appear on the label. (Emphasis supplied). In addition, the regulations differ as to the details that must be given about the address of the producer. FDA requires the street address, city, state and zip code be given, 21 C.F.R. 1.8a(d), while BATF requires "post office address; except that the street address may be omitted," 27 C.F.R. 5.36(c).
The two regulatory agencies also differ on the labeling of "imitations." The 1938 Act provides that a food is misbranded "if it is an imitation of another food, unless its label bears in type and uniform size and prominence the word `imitation' and, immediately thereafter, the name of the food imitated." 21 U.S.C. § 343(c). The FDA has decided the term "imitation" means a food which "is a substitute for and resembles another food but is nutritionally inferior to that food." 21 C.F.R. 1.8(e)(1). The 1935 Act, conversely, confers broad discretion in BATF to determine whether alcoholic beverages must be labeled as imitations. 27 U.S.C. § 205(e)(2).
The FDA attempts to demonstrate that these conflicts in the statutory mandate given to the two agencies as well as the conflicting regulations promulgated by FDA and BATF are not significant for the two agencies can work out a compromise by adopting a Memorandum of Understanding. Such a memorandum would state that, "except for the matter of ingredient labeling, FDA will accept labels approved by BATF as being in compliance with the FDC Act." Defendant Schmidt's Affidavit at 3. This argument is unpersuasive for several reasons. First, while the Court agrees that agencies should attempt to work out theoretical conflicts between themselves we do not believe that it is legally proper for an agency to ignore its statutory obligations, as construed in promulgated regulations. Thus, if we accepted Commissioner Schmidt's approach to this problem we would be authorizing the FDA to blind itself to the regulations it does not wish to see but to view squarely the regulation it wishes to enforce. Such is an untenable position. Second, such a memorandum as envisioned by Commissioner Schmidt would ostensibly be similar to the agreement, also termed a memorandum of understanding, signed by BATF and FDA on October 8, 1974, concerning ingredient labeling of alcoholic beverages. As such it would not be binding on either agency and could, therefore, be rescinded. We have already seen that FDA has a quick "trigger finger" when it comes to rescinding inter-agency agreements which no longer suit its purpose. See 40 Fed.Reg. 54455 (FDA rescission of the October 8, 1974, Memorandum of Understanding with BATF). Hence, such a Memorandum of Understanding, as proposed by Commissioner Schmidt, has little lasting value. Finally, the Commissioner's proposed agreement underlines the irreconcilable conflict that exists between BATF and FDA on the question of ingredient labeling. By excluding ingredient labeling from the scope of the proposed memorandum *16 the Commissioner has conceded that the agencies cannot reconcile this difference.
It is patent, therefore, that the 1935 and 1938 Acts when coupled with the regulations promulgated thereunder do establish conflicting regulatory requirements concerning the labeling of alcoholic beverages.
Thus, it is our opinion that Congress intended the 1935 Act, which contains a specific and comprehensive provision dealing with labeling of alcoholic beverages, to govern the labeling of such products to the exclusion of the misbranding provisions of the 1938 Act. Given the above-stated conflicting statutory and regulatory framework it is clear that had we held the labeling jurisdiction of the FDA to be concurrent with that of the BATF, the alcoholic beverage industry would be "subjected to duplicative and inconsistent [labeling] standards." Securities Dealers, supra at 735, 95 S.Ct. at 2450. As the Supreme Court declared in Securities Dealers: "This is hardly a result that Congress would have mandated." Id. In sum, we hold that it was the implied intention of the Congress to grant exclusive labeling jurisdiction over alcoholic beverages to the BATF.
In so holding we specifically refuse to accept the defendants' contention that Congress' failure to exclude specifically the labeling of alcoholic beverages from the provisions of the 1938 Act, under 21 U.S.C. 392(a) or 392(b), was a dispositive indication of Congress' intention to include labeling authority over alcoholic beverages within the jurisdiction of the FDA. Although such an explicit statement would have been simple for Congress to include within the Act, its failure to do so is not dispositive given the fact that (1) legislative history, especially Congressman Chapman's remarks concerning an early draft of the 1938 Act, demonstrates that Congress did not believe the 1938 legislation included labeling authority over alcoholic beverages; and, (2) three years prior to the 1938 Act Congress had previously passed legislation related directly to alcoholic beverages which included a specific and comprehensive section on labeling of such beverages, an act which was not by specific language repealed, modified or limited in any respect by the 1938 Act. To accept the defendants' argument we would have to believe that Congress intended to inflict upon the alcoholic beverage industry conflicting labeling requirements. We refuse to make such an assumption.
Our determination that labeling jurisdiction over alcoholic beverages rests exclusively within the BATF is supported by actions of FDA and BATF during the last thirty-eight years.
Although the FDA had, pursuant to the 1906 Act, general jurisdiction to prevent deceptive labeling of foods, such authority, as applied to alcoholic beverages was implicitly repealed by Congress when it enacted the 1935 Act, an act which placed comprehensive authority to regulate all areas of the labeling of alcoholic beverages under the auspices of the Secretary of the Treasury. Hence, from 1935 until the enactment of the 1938 Act the BATF (or its predecessor) undoubtedly possessed exclusive labeling jurisdiction over alcoholic beverages.
On April 11, 1940, the FDA stated its position on the labeling of alcoholic beverages. In FDA Trade Correspondence No. 224 the agency wrote that alcoholic beverages "are subject to the (1938) Act," yet, the FDA would leave the regulation of the labeling of such beverages to what is now the BATF. The FDA continued to hold this position until November, 1975. In short for nearly forty years the FDA never took any significant affirmative steps to regulate the labeling of alcoholic beverages. In contrast BATF (or its predecessor) has been actively involved in comprehensively regulating all aspects of alcoholic beverage labeling during this same time period. 27 C.F.R. Parts 4, 5 and 7.
We cannot ignore the fact that for nearly forty years the FDA was content on merely standing on its assertion that it had concurrent labeling jurisdiction over alcoholic beverages while the BATF was thoroughly engaged in regulating the labeling of alcoholic beverages. The fact that FDA *17 asserted in 1940 that it has concurrent jurisdiction in this area is of no particular importance because the scope of the FDA's authority does not rest on its assertion of authority but on the actual jurisdiction conferred upon it by Congress through legislative enactment, as construed by the Courts.
Importantly, the FDA was actively involved during this thirty-eight year period with promulgating detailed labeling regulations with respect to various kinds of food, 21 C.F.R. Part 1, but not for alcoholic beverages. In addition, the FDA did actively enforce the adulteration provisions of the 1935 Act with regard to alcoholic beverages. See e.g. United States v. Commonwealth Brewing Co., (D.Mass.1945), reported in Kleinfeld and Dunn, Federal Food, Drug and Cosmetic Act 1938-1949 at 310. Hence, the actions of the FDA during the last thirty-eight years support the conclusion that while Congress intended the FDA to have the authority to enforce the adulteration provisions of the 1938 Act with respect to alcoholic beverages it did not intend the FDA to have concurrent jurisdiction with BATF concerning the labeling of alcoholic beverages.
It is also important for the Court to point out that the labeling of alcoholic beverages is currently being extensively regulated by BATF. See 27 C.F.R. Parts 4, 5 and 7; See also footnote 3, supra. Significantly, BATF spent six days in public hearings listening to many representatives from the alcoholic beverage industry, consumer groups and other interested persons on the precise issue of ingredient labeling of alcoholic beverages. In addition BATF reviewed over 1,000 written comments on the question of ingredient labeling. Having extensively reviewed this subject BATF decided to withdraw its proposed regulation concerning ingredient labeling. The agency based its decision on five explicitly stated reasons: (1) the cost of ingredient labeling for alcoholic beverages (to the industry and ultimately to the consumer) "would be excessive in relation to the benefit received;" (2) the actual content of alcoholic beverages already is "extensively regulated;" (3) the labeling of ingredients would be "of little value and, in certain cases, even misleading;" (4) such requirements might hinder current international trade negotiations; and (5) "ingredient labeling is supported by only a small segment of the public." 40 Fed.Reg. 52513. What these facts demonstrate is that BATF has over the years been diligent in regulating the labeling of alcoholic beverages; and, this diligence was also demonstrated in the manner in which BATF considered the question of ingredient labeling for alcoholic beverages.
We find it difficult to believe that Congress in its wisdom would create two administrative agencies under two acts, which give rise to two conflicting regulatory schemes, to oversee one subject matter, alcoholic beverage labeling, especially when the agency which all concede is primarily responsible for regulating the alcoholic beverage industry has been doing an efficient and effective job for over forty years.
We believe it was Congress' intention to place exclusive jurisdiction in BATF with respect to regulating the labeling of alcoholic beverages. Ergo, we shall sustain plaintiffs' motion for summary judgment. Having granted the plaintiffs' motion for the above-stated reason we need not decide the remaining issues presented to us by the plaintiffs.
A separate judgment shall this day be entered in conformance with this Memorandum Opinion.
NOTES
[1] Plaintiffs in this action include (i) eight United States distillers and one United States winemaker, (ii) the Distilled Spirits Council of the United States, Inc., whose members produce approximately 95 per centum of all distilled spirits produced annually in this country, (iii) the National Association of Alcoholic Beverage Importers, Inc., which is the principal trade association of importers of distilled spirits and wine, and (iv) the Wine Institute, whose members produce annually 80 per centum of all wine produced annually in this country.
[2] While plaintiffs argue that alcoholic beverages are not subject to the labeling requirements of the Federal Food, Drug and Cosmetic Act of 1938, 21 U.S.C. § 301, et seq., they concede that alcoholic beverages are subject to the adulteration provisions of the act. Plaintiffs' Reply Brief at 16.
[3] The extent of the labeling regulation by BATF is shown by the fact that since 1935 it "has approved and certified approximately 500,000 spirit labels. In 1975 alone BATF reviewed 23,112 applications for the approval of distilled spirits labels. Of this figure 492 proposed labels were found by BATF to be deficient and certifications accordingly were denied." Plaintiffs' Reply Brief at 12 n.*.
[4] On July 1, 1976, the FDA postponed the date for enforcement of its labeling requirements with respect to alcoholic beverages until January 1, 1978. 41 Fed.Reg. 27102.
[5] Although the defendants' motion is styled as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the defendants have supported their argument with materials outside the pleadings, thus, we shall consider their motion as one for summary judgment.
[6] The cases cited by the FDA arising under the 1906 Act which held the term "food" under that Act included alcoholic beverages are inapplicable to this case because they precede the enactment of the 1935 Act, where Congress created a specific and comprehensive statute dealing with the regulation of alcoholic beverages. Similarly, the "labeling" authority under the 1906 Act was limited in nature and is distinct in kind from the labeling authority question presented here. The defendants place great reliance on United States v. 1,800.2625 Wine Gallons of Distilled Spirits, 121 F.Supp. 735 (W.D.Mo.1954), hereafter Wine Gallon. Although Wine Gallon, as defendants contend, can be read as a "labeling" case the Wine Gallon Court was not presented with the complicated agency jurisdictional question that is argued in this case, and, in fact the Wine Gallon case is not a 21 U.S.C. § 343(i) action. We think Wine Gallon is to a large extent distinguishable from this case, and to the extent it is indistinguishable we choose not to follow it.
[7] In fact Congressman Chapman's remarks when coupled with Congressman Cole's statement, see supra at 10, can be read to indicate that neither congressman considered "alcoholic beverages" to be food, as that term was then defined in the draft.
| {
"pile_set_name": "FreeLaw"
} |
807 A.2d 179 (2002)
146 Md. App. 509
BLAKEHURST LIFE CARE COMMUNITY/THE CHESTNUT REAL ESTATE PARTNERSHIP,
v.
BALTIMORE COUNTY, Maryland, et al.
No. 1591, September Term, 2001.
Court of Special Appeals of Maryland.
September 10, 2002.
*180 Benjamin Rosenberg (Rosenberg, Proutt, Funk & Greenberg, LLP, Baltimore, John H. Zink, III, Patricia A. Malone and Venable, Baetjer and Howard, LLP, Towson, on brief) for appellant.
J. Carroll Holzer (Holzer & Lee, on the brief) Towson, for appellee.
Argued before SALMON, SHARER, CHARLES E., MOYLAN JR., (Retired, Specially Assigned), JJ.
SHARER, Judge.
Blakehurst Life Care Community/The Chestnut Real Estate Partnership ("Chestnut/Blakehurst"), appeals from a decision of the Circuit Court for Baltimore County, affirming a decision of the County Board of Appeals (the Board),[1] denying Chestnut/Blakehurst's request for approval of the addition of 63 parking spaces to the Blakehurst premises. Appellants raise the following questions for our review:
I. Did the Board of Appeals exceed its jurisdiction when it denied approval of a refinement to a development plan based on its interpretation of a restrictive covenant agreement?
II. If not, was the Board of Appeals interpretation of the agreement legally correct?
Because we find that the Board did not exceed its jurisdiction in interpreting the agreement, and because we do not find error in the Board's decision, we shall affirm.
The History of Blakehurst
Blakehurst Life Care Community is a 278 unit continuing care/assisted living *181 community located on Joppa Road in Towson, Baltimore County. It was developed by the Chestnut Partnership in 1988.
Because there was, at that time, opposition from the neighboring community (represented primarily by the Ruxton-Riderwood-Lake Roland Area Improvement Association) (the Association) in which the development was planned, there evolved a restrictive covenant agreement (the Agreement) which allowed the initial development to go forward. The Agreement was adopted by the appropriate Baltimore County agencies as the operative controlling document for the development of Blakehurst, and for future expansions and improvements.
FACTUAL AND PROCEDURAL BACKGROUND
The 1988 Restrictive Covenant Agreement
In 1988, the Chestnut Partnership submitted to the Baltimore County Review Group (CRG) a plan to build a continuing care facility on a 40.92 acre tract at 1055 Joppa Road in Towson. On September 8, 1988, following a public meeting, the CRG approved the plan. Adjacent property owners and the Association filed an appeal of the CRG approval to the Baltimore County Board of Appeals.
The Chestnut Partnership then filed petitions for a special exception and variance with the Baltimore County Zoning Commissioner. Following a hearing on September 25, 1988, the Zoning Commissioner denied the requests ruling that "... the size and scope of the project is inconsistent with the peaceful use and enjoyment of the surrounding neighborhood." The Chestnut Partnership filed a timely appeal of that decision to the Board.
To avoid further administrative litigation, and probable appeals, relating to the proposed development, the Chestnut Partnership, the Association, and several individual adjacent property owners entered into the Restrictive Covenant Agreement. The Agreement, executed on October 13, 1988, stipulated that specifically identified maps, plans, plats, and other pertinent documents, would define the size and scope of the Blakehurst development (1) for 25 years on the portion of the land containing the residential buildings and (2) for 50 years on the remaining portion of the land.
The Chestnut Partnership, the Association and the individual parties to the Agreement then requested that the Board consolidate the pending appeals (the CRG approval appeal and the special exception denial appeal) and to approve the development in the terms defined by the Agreement. The Board acquiesced and, on October 25, 1988, entered a consent order adopting and incorporating the Agreement. The consent order provided, in relevant part, that
The Continuing Care Facility hereby approved shall conform in all respects to the terms and conditions of the October 13, 1988 Restrictive Covenant Agreement and Exhibits between the parties, which is hereby incorporated as a part of this Order as if it were fully set forth herein.
Blakehurst was then developed and constructed by the Chestnut Partnership.
Pertinent to our discussion throughout are Paragraphs 1(f) and 12 of the Agreement. Paragraph 1(f) provides that
[r]easonable adjustments in the location of buildings, parking and other features of the Community shall be permitted upon the direction and approval of the Director of Planning for Baltimore County, it being the intention of all parties to maximize the retention of existing *182 trees and vegetation on the Land and to permit a degree of flexibility in addressing the nature and constraints of the site, appropriate governmental building standards and requirements and the needs of the elderly residents.
Paragraph 12 sets forth that "[t]his Agreement may be amended by a written instrument in recordable form, executed by Chestnut, and by the Advisory Board [of the Association] after a favorable vote of 3/4 of the Board or their successors."
1989 through 1998
Between 1989 and 1998, the Chestnut Partnership proposed five changes in the Blakehurst development, including two proposals to create additional parking spaces under and around the buildings. Each time, Blakehurst negotiated with appellees, and agreement was reached, resulting in five addenda to the Agreement as contemplated by Paragraph 12.
The Addenda
The first addendum to the Agreement, dated December 28, 1989, permitted Chestnut to increase the number of residential units beyond that called for in the original approval.
The second addendum, (inexplicably dated November 9, 1989), allowed the repositioning of security gates.
The third addendum, and the most complex, was approved on September 7, 1990. It dealt with modifications of the original plan relating to the size and location of buildings and the location of surface parking, as well as with several procedural subjects.
The fourth addendum, dated November 5, 1996, permitted the development of a number of underground parking spaces.
The fifth, and last, addendum, dated June 29, 1998, allowed for the creation of additional surface parking, for the enlargement of an existing building, and for the construction of additional buildings.
1999 Request for Additional Parking Spaces
In the fall of 1999, Chestnut/Blakehurst developed a proposal to add 30 surface parking spaces in the vicinity of the Health Care Building and 33 surface parking spaces in the vicinity of a residential structure, identified as Building F. As in the past, Chestnut/Blakehurst approached appellees in the hope of formulating the sixth addendum to the Agreement. Appellees, however, objected and vigorously opposed the proposal.
Chestnut/Blakehurst then applied for the "direction and approval" of the Director of the Office of Planning (OPZ) pursuant to Paragraph 1(f) of the Agreement. After discussions with Chestnut/Blakehurst and appellees, the Director approved the proposal on October 29, 1999. With the Director's "direction and approval" in hand, Chestnut/Blakehurst filed a request with the DRC for permission to develop the 63 additional parking spaces as a "refinement" to the last approved CRG plan.
On November 1, 1999, the DRC met to review the Chestnut/Blakehurst request and, thereafter, recommended approval of the additional parking spaces as a "refinement" to the CRG plan. On November 8, 1999, Arnold Jablon, Director of the Department of Permits and Development Management (DPDM), accepted the DRC's recommendation and approved the request as such a "refinement." Chestnut/Blakehurst subsequently submitted a 4th Amended CRG Plan for approval, which the CRG granted on November 19, 1999.
Appellees filed two timely appeals with the Board. In the first, they took exception *183 to the DPDM's determination that the proposal was a "refinement"; in the other they challenged the CRG's approval of the additional parking. The Board consolidated the appeals and considered both issues at a hearing on May 30, 2000.
Chestnut/Blakehurst contends that the only issue before the Board was whether the proposed additional parking fell within the definition of a "refinement," thus obviating the need for an agreed addendum to the Agreement. Appellees posit that the only issue before the Board was whether the Director and the DRC had the authority or jurisdiction to permit any amendment, whether "material" or simply a "refinement," to the approved CRG plan without an addendum to the Agreement or, in the alternative, without approval of the Board to amend the Board's previous consent order.
Following the consolidated hearing, the Board issued an opinion sustaining the DRC's determination that the proposed additional parking was, in fact, a "refinement" to the CRG plan. The Board, however, reversed the decisions of the DRC and CRG, concluding that, although the additional parking was a "refinement," the Agreement required Chestnut/Blakehurst to obtain appellees' consent to the proposal in order to amend the CRG plan.[2]
Chestnut/Blakehurst appealed the Board's decision to the Circuit Court for Baltimore County. After hearing, the circuit court affirmed the decision of the Board. Chestnut/Blakehurst has filed a timely appeal to this Court.[3]
STANDARD OF REVIEW
We review the issues in this appeal as did the circuit court, that is, on the record before it, was the Board clearly erroneous in its findings of fact, or did it commit an error of law? In doing so, we give deference to the expertise of the agency whose ruling is being reviewed. As in Angelini v. Harford County, 144 Md.App. 369, 798 A.2d 26 (2002), we are presented primarily with the agency's interpretation of the zoning code and an operative order earlier passed by the agency. Judge Moylan wrote for this Court in Angelini that
[w]hen the caselaw discusses the standard of review to be applied to a decision of an administrative agency, it generally distinguishes between 1) the agency's findings of fact, to which great deference is due under the "clearly erroneous" standard; and 2) the agency's rulings of law, as to which the courts do not hesitate to substitute their judgment for that of the agency.
The critical agency determination in this case was not a finding of fact. Neither was it a ruling of law in the more common sense, although it was more like the latter than like the former. It was, rather, the agency's interpretation of a *184 law or regulation with respect to which the agency has a special expertise. When such an interpretation is under review, judicial deference is called for.
Angelini, supra, 144 Md.App. at 373, 798 A.2d 26.
In Board of Physician Quality Assurance v. Banks, 354 Md. 59, 729 A.2d 376 (1999), the Court of Appeals set forth an appellate court's role in reviewing administrative agency decisions:
A court's role in reviewing an administrative agency adjudicatory decision is narrow, United Parcel v. People's Counsel, 336 Md. 569, 576, 650 A.2d 226, 230 (1994); it "is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." United Parcel, 336 Md. at 577, 650 A.2d at 230. See also Code (1984, 1995 Repl.Vol.), § 10-222(h) of the State Government Article; District Council v. Brandywine, 350 Md. 339, 349, 711 A.2d 1346, 1350-1351 (1998); Catonsville Nursing v. Loveman, 349 Md. 560, 568-569, 709 A.2d 749, 753 (1998).
In applying the substantial evidence test, a reviewing court decides "`"whether a reasoning mind reasonably could have reached the factual conclusion the agency reached."`" Bulluck v. Pelham Wood Apts., 283 Md. 505, 512, 390 A.2d 1119, 1123 (1978). See Anderson v. Dep't of Public Safety, 330 Md. 187, 213, 623 A.2d 198, 210 (1993). A reviewing court should defer to the agency's fact-finding and drawing of inferences if they are supported by the record. CBS v. Comptroller, 319 Md. 687, 698, 575 A.2d 324, 329 (1990). A reviewing court "`must review the agency's decision in the light most favorable to it; ... the agency's decision is prima facie correct and presumed valid, and... it is the agency's province to resolve conflicting evidence' and to draw inferences from that evidence." CBS v. Comptroller, supra, 319 Md. at 698, 575 A.2d at 329, quoting Ramsay, Scarlett Co. v. Comptroller, 302 Md. 825, 834-835, 490 A.2d 1296, 1301 (1985) See Catonsville Nursing v. Loveman, supra, 349 Md. at 569, 709 A.2d at 753 (final agency decisions "are prima facie correct and carry with them the presumption of validity").
Despite some unfortunate language that has crept into a few of our opinions, a "court's task on review is not to `"`substitute its judgment for the expertise of those persons who constitute the administrative agency,'"`" United Parcel v. People's Counsel, supra, 336 Md. at 576-577, 650 A.2d at 230, quoting Bulluck v. Pelham Wood Apts., supra, 283 Md. at 513, 390 A.2d at 1124. Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Lussier v. Md. Racing Commission, 343 Md. 681, 696-697, 684 A.2d 804, 811-812 (1996), and cases there cited; McCullough v. Wittner, 314 Md. 602, 612, 552 A.2d 881, 886 (1989) ("The interpretation of a statute by those officials charged with administering the statute is ... entitled to weight"). Furthermore, the expertise of the agency in its own field should be respected. Fogle v. H & G Restaurant, 337 Md. 441, 455, 654 A.2d 449, 456 (1995); Christ [ex rel. Christ] v. Department of Natural Resources, 335 Md. 427, 445, 644 A.2d 34, 42 (1994) (legislative delegations of authority to administrative agencies will often include the authority to make "significant discretionary policy determinations"); Bd. of *185 Ed. For Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986) ("application of the State Board of Education's expertise would clearly be desirable before a court attempts to resolve the" legal issues).
Board of Physician Quality Assurance, supra, 354 Md. at 67-69, 729 A.2d 376 (footnotes omitted).
In Marzullo v. Kahl, 366 Md. 158, 783 A.2d 169 (2001), in which the issues to be reviewed were not dissimilar to those presented here, Judge Cathell wrote that
In [this case], the facts of the case are not in dispute; however, the Board of Appeals' interpretation and application of the [zoning regulations] is in dispute. As stated in Banks, even though the decision of the Board of Appeals was based on the law, its expertise should be taken into consideration and its decision should be afforded the appropriate deference in [an] analysis of whether it was "premised upon an erroneous conclusion of law." Banks, 354 Md. at 68, 729 A.2d at 380, quoting from United Parcel Service, Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 577, 650 A.2d 226, 230 (1994).
366 Md. at 173, 783 A.2d 169.
Here, the Board did not merely interpret and apply its own regulation, it interpreted and enforced its own previous order. We see no distinction between the interpretation by an administrative agency of a statute or regulation that the agency is charged to administer, and the interpretation by the agency of its own orders, as we will discuss below.
DISCUSSION
I. Did the County Board of Appeals exceed its authority by interpreting the Restrictive Covenant Agreement?
Blakehurst first argues that the Board exceeded its authority by reviewing the restrictive covenant agreement between the parties and enforcing its terms.
An administrative agency, such as the Board, is a "`creature of statute, [which] has no inherent powers and its authority thus does not reach beyond the warrant provided it by statute.'" Adamson v. Correctional Med., 359 Md. 238, 250, 753 A.2d 501 (2000) (quoting Holy Cross Hosp. of Silver Spring, Inc. v. Health Servs. Cost Review Comm'n, 283 Md. 677, 683, 393 A.2d 181 (1978)). Md. Ann.Code art. 25A, § 5(U) authorizes a charter county, such as Baltimore County, to enact local laws providing for the establishment of a board of appeals and, once established, to empower such board to decide "matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of ... the county council." Md. Ann.Code art. 25A, § 5(U).
Baltimore County established the Board. Baltimore County Charter (B.C.C.) § 601; see United Parcel v. People's Counsel, 336 Md. 569, 588-89, 650 A.2d 226 (1994) (discussing the authority granted by § 5(U), particularly as it relates to the Baltimore County Board of Appeals). Baltimore County vested the Board with original jurisdiction as to petitions for zoning reclassification and with appellate jurisdiction for other matters, including orders related to zoning, licenses, building, and all executive, administrative, and adjudicatory orders. B.C.C., Charter § 602.
Chestnut/Blakehurst, when seeking regulatory approval for the commencement of the Blakehurst project, negotiated with appellees and their predecessors, the result of which was that appellees bargained away their objection to the project in return for certain restrictions and limitations *186 on the scope of the development. That agreement, as we have seen, was incorporated into the Board's order. We agree with Chestnut/Blakehurst that, under its enabling statute, the Board does not have authority to interpret and enforce a private contract, such as restrictive covenant agreement, absent more. But Chestnut/Blakehurst, in order to remove the impediment of neighborhood protest to the initial project, acquiesced in the incorporation of the Agreement into the Board's formal opinion and order in 1988 by the language that we have earlier quoted.
The Agreement, by incorporation into the consent order, thus became a public document as contrasted with a private agreement. Having attained the status of an order of the Board, it became enforceable by the Board. Chestnut/Blakehurst, having utilized the Agreement and consent order to attain the goal of development, now, for the first time, seeks to disavow the process, relying upon the language in Sec. 1(f) of the Agreement, which we will discuss, infra.
The use of restrictive covenants or conditions to obtain regulatory approval of land and property use is not novel. In Montgomery County v. Mossburg, 228 Md. 555, 180 A.2d 851 (1962), where the property owner acquiesced in the imposition of certain conditions on the operation of his business, the Court of Appeals noted that "[w]e have heretofore, at least by necessary implication, recognized that a condition to a special exception, the effect of which was to limit the privilege granted by a liquor license, could validly be ordered by a zoning board." 228 Md. at 560-61, 180 A.2d 851. See also Oursler v. Board of Zoning Appeals, 204 Md. 397, 104 A.2d 568 (1954).
Appellants assert that "... the Board of Appeals does not have jurisdiction to interpret and enforce restrictive covenant agreements." As an abstract statement of zoning law that position is sound. "The ordinance does not override or defeat whatever private rights exist and are legally enforceable, but neither is it controlled in its workings or effects by such rights." Perry v. Board of Appeals, 211 Md. 294, 299, 127 A.2d 507 (1956). However, Perry and other cases cited for the proposition are distinguishable, in that none of them have, as a factual component, a covenant or condition negotiated into a consent order. Those cases all deal with the effect of subsequently enacted zoning regulations on earlier privately established covenants or restrictions.
Ought judicial deference be given to an administrative agency's interpretation of its own order? There are several aspects to the deference question in this context. First, the agency's interpretation of its organic statute is entitled to deference. Board of Physician Quality Assurance v. Banks, 354 Md. 59, 729 A.2d 376 (1999). Second, "... a great deal of deference is owed to an administrative agency's interpretation of its own regulation." Maryland Transp. Auth. v. King, 369 Md. 274, 799 A.2d 1246 (2002). See also Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 800 A.2d 768 (2002).
The third aspect presents the question of deference to be afforded an agency's interpretation of its own prior orders. We have found no Maryland case that specifically answers the question, so we have looked to the jurisprudence of other jurisdictions for guidance. In so doing, we have found, for example, Commonwealth of Pennsylvania v. Surface Transp. Bd., 290 F.3d 522 (3d Cir.2002) wherein the court noted that "`[w]e accord particular deference when, as here, the subject of review is the agency's interpretation ... of *187 its own order.'" 290 F.3d at 530 (quoting National Motor Freight Traffic Ass'n v. ICC, 590 F.2d 1180, 1184 (D.C.Cir.1978)). In a more recent decision, the D.C. Court of Appeals referred to the "presumption" of validity and "high level of deference" accorded an agency in interpreting its own orders, as well as its own regulations. MCI Worldcom Network Servs., Inc. v. FCC, 274 F.3d 542, 548 (2001). We find the logic of those authorities to be persuasive. Because in Maryland we accord judicial deference to an administrative agency's interpretation of the statute that gave it creation, and to an agency's interpretation of regulations enacted by it, we hold that deference should be accorded to an administrative agency in the interpretation of its own previously adopted orders.
It follows, therefore, from Mossburg, supra, that, if a condition or covenant, with the consent of the parties, can be validly ordered by a zoning board, such a condition can likewise be interpreted and enforced by the zoning authority. See Board of Liquor License Comm'rs v. Fells Point Cafe, 344 Md. 120, 685 A.2d 772 (1996) (holding that the zoning board could place restrictions on the issuance of a license with the consent of the licensees, and that enforcement of the consensual restrictions were within the jurisdiction of the board).
Therefore, under these circumstances, we conclude that the Board did not exceed its authority in its review and interpretation of relevant terms and provisions of the Agreement and Consent Order.
II. Did the County Board of Appeals err in its interpretation of the Agreement?
Having determined that the Board was vested with the authority to interpret the Agreement and the Consent Order, we turn to the question of whether its interpretation was correct as a matter of law.
Appellants further argue that, even if the provisions of the Agreement in Section 1(a) through 1(e) are enforceable by the Board as consensual restrictive covenants, Section 1(f) is not because that provision refers, not to restrictions, but to the amendment process to be followed by the parties. We note, however, that Section 12 of the Agreement is entitled "Amendment" and suggest that, if Section 1(f) is to be interpreted as a guide for the amendment process, it is misplaced under Section 1, which is entitled "Community Scope." We do not read Section 1(f) as controlling the amendment process.
Maryland has long adhered to the law of objective interpretation of contracts. Auction & Estate Representatives v. Ashton, 354 Md. 333, 731 A.2d 441 (1999); Calomiris v. Woods, 353 Md. 425, 727 A.2d 358 (1999); Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298 (1996); State v. Attman/Glazer P.B. Co., 323 Md. 592, 594 A.2d 138 (1991). The clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or was intended to mean. Auction Estate Representatives, supra; Adloo, supra; GMAC v. Daniels, 303 Md. 254, 492 A.2d 1306 (1985).
The specific wording of Section 1(f) provides, in pertinent part, that "[r]easonable adjustments in the location of ... parking... shall be permitted upon the direction and approval of the Director of Planning...." We first note that the section speaks to the "adjustments in the location" of parking, not the creation of additional parking. "Adjust" is defined as to "alter or move slightly in order to achieve the desired fit, appearance, or result; to permit small alterations so as to allow a desired fit or result." THE NEW OXFORD AMERICAN DICTIONARY 20 (2001). Our objective interpretation of Section 1(f), *188 taken in context with the entire agreement, leads us to conclude that the section is not severable from Sections 1(a) through 1(e). As we see it, Section 1(f) is designed to avoid the need for negotiation on minor questions of parking or other features. Our conclusion, we hasten to add, is bolstered by the past practice of the parties' in dealing with parking facilities; in each case an addendum was proposed, negotiated and incorporated into the 1988 consent order. In fact, two of the five previous addenda related, at least in part, to parking-related modifications.
Appellants take a fallback position, to wit: even if the Board was within its jurisdiction to review and interpret the Agreement under the terms of its consent order, it erred by finding that the Agreement, even in the case of a "refinement," required consent by appellees. The Board ruled that the DRC did not have the authority to amend the CRG plan without reference to the Agreement and the consent order. We agree.
"Where the language of the consent decree is clear and unambiguous, all terms in the decree `are to be given their plain meaning in construing the order.'" Kirby v. Kirby, 129 Md.App. 212, 216, 741 A.2d 528 (1999) (quoting Shanty Town Assocs. Ltd. P'ship v. Department of Env't., 92 Md.App. 103, 112, 607 A.2d 66 (1992), cert. denied, 328 Md. 94, 612 A.2d 1316 (1992)).
The Director of Planning under the terms of the Board's 1988 consent order and incorporated Agreement, lacked the authority to approve expansion of the facilities.
The Board was correct that no other agency or official could amend the terms and conditions of its 1988 consent order, and the incorporated Agreement, without the appellees written approval by way of addendum, or by a petition for special hearing to request that the Board modify the conditions and terms of the consent order and the Agreement.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Appendix I
BCA Baltimore County Board of Appeals
CRG County Review Group
OPZ Office of Planning and Zoning
DOPZ Director, Office of Planning and
Zoning
DPDM Department of Permits and Development
Management
DRC Development Review Committee
BCC Baltimore County Charter
NOTES
[1] For the benefit of the reader, we append hereto a glossary of acronyms and abbreviations identifying the various agencies involved in the zoning, planning, and permit process in Baltimore County. See Appendix I.
[2] One member of the Board filed a minority opinion agreeing with the majority that the proposal was merely a refinement, but opined that the Board did not have jurisdiction to require an addendum to the Agreement and the consent order.
[3] In December 2000, in a separate action filed by appellees against Blakehurst in the Circuit Court for Baltimore County, they requested injunctive relief prohibiting construction of the proposed parking spaces, contending it would be a violation of the Agreement. Erwin H. Huber, et al. v. Chestnut Real Estate Partnership, et al., Circuit Court for Baltimore County, Case No. 03-C-00-005576. On November 29, 2001, Hon. Robert E. Cahill, relying on Judge Wright's decision to affirm the CBA in this administrative appeal, issued an order in Huber enjoining the construction of the sixty-three parking spaces. Blakehurst has appealed Judge Cahill's decision to this Court in a separate appeal entitled Chestnut Real Estate Partnership, et al. v. Erwin W. Huber, et al., Case No. 01592, September Term, 2001.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1676V
(not to be published)
CECILIA NUSS,
Chief Special Master Corcoran
Petitioner,
v. Filed: May 22, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Kristina Kay Green, Kralovec, Jambois & Schwartz, Chicago, IL, for Petitioner.
Heather Lynn Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On October 30, 2018, Cecilia Nuss filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration as a result of a Human Papillomavirus vaccine received on April 6, 2017.
(Petition at 1). On January 23, 2020, a decision was issued awarding compensation to
Petitioner based on the Respondent’s proffer. (ECF No. 25).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated April 3, 2020,
(ECF No. 31), requesting a total award of $16,476.40 (representing $15,909.30 in fees
and $567.10 in costs). In accordance with General Order No. 9, counsel for Petitioner
represents that Petitioner incurred no out-of-pocket expenses. (Id. 31 at 5). Respondent
reacted to the motion on April 8, 2020 indicating that he is satisfied that the statutory
requirements for an award of attorney’s fees and costs are met in this case, and deferring
to my discretion to determine the amount to be awarded. (ECF No. 32). Petitioner did not
file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate for the reasons listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
It is “well within the special master’s discretion to reduce the hours to a number
that, in [her] experience and judgment, [is] reasonable for the work done.” Saxton, 3 F.3d
at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart
from objections raised by respondent and without providing a petitioner notice and
opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201,
209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee
application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102
Fed. Cl. 719, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). Program claimants seeking a fees award “should present
adequate proof [of the attorney’s fees and costs sought] at the time of the submission.”
Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer
2
in private practice ethically is obligated to exclude such hours from his fee submission.”
Hensley, 461 U.S., at 434.
ATTORNEY FEES
A. Hourly Rates
Petitioner requests attorney Kristina K. Green be compensated at the following
rates: $300 per hour for time billed in 2017, $317 per hour for time billed in 2018, $330
per hour for time billed in 2019, and $350 for time billed in 2020. (ECF No.31 at 4).
Petitioner also requests compensation for time billed by paralegals at the rate of $150 per
hour for time billed in 2018, $156 for time billed in 2019, and $163 for time billed in 2020.
(Id). After review, I find adjustments are needed to the requested rates.
Ms. Green has been a licensed attorney in Illinois since 2011, placing her in the
OSM range of attorneys with 4-7 years’ experience for time billed from 2017 - 2018, and
in the range of 8-10 years’ experience for time billed in 2019. (ECF No. 35 -5 at 1). This
is Ms. Green’s first case in the Vaccine Program in which she has earned fees (with her
second case still pending). Ms. Green’s requested rates thus fall at the top of the ranges
for similarly-experienced attorneys – and therefore exceed what an attorney with
comparable limited Vaccine Act-specific experience would receive. See McCulloch v.
Sec’y of Health and Human Services, No. 09–293V, 2015 WL 5634323, at *17 (Fed. Cl.
Spec. Mstr. Sept. 1, 2015) (stating that the following factors are paramount in deciding a
reasonable forum hourly rate: experience in the Vaccine Program, overall legal
experience, the quality of work performed, and the reputation in the legal community and
community at large).
In light of the above, I find it appropriate to reduce the requested hourly rates for
Ms. Green to the following:
• $265 per hour for work performed in 2017;
• $280 per hour for work performed in 2018;
• $300 per hour for work performed in 2019; and
• $320 per hour for work performed in 2020.
3
This reduces the total amount to be awarded as fees in this case for work Ms.
Green performed by $1,446.00. 3
B. Paralegal Tasks at Attorney Rates
The filed attorney invoices reveal multiple instances in which tasks that are
considered paralegal in nature were billed at attorney rates. In the Vaccine Program,
attorneys may be compensated for paralegal-level work, but only at a rate comparable to
what would be paid for a paralegal. See, e.g., Doe/11 v. Sec’y of Health & Human Servs.,
No. XX-XXXV, 2010 WL 529425, at *9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing
Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human
Servs., No. 02-10V, 2016 WL 720969, at *5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins.
v. Sec’y of Health & Human Servs., 99-382V, 2009 WL 3319818, at *20-21 (Fed. Cl. Spec.
Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535, 2008 WL
5747914, at *5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008).
Examples of such instances include:
• September 20, 2018 (0.20 hrs) “Format, number & save Fox Valley records & MRI
for petition exhibits and update citations in petitioner”;
• March 28, 2019 (0.60 hrs) “Draft NOF for medical records subpoenaed from NW
Primary Care and save as PDF; add bates numbers to NW Primary Care Records;
Convert amended statement of completion into PDF for filing; e-file NOF, NW
Primary Care medical records and amended statement of completion”;
• January 27, 2020 (0.20 hrs) “File Joint Notice Not to Seek Review, save filed copy”;
and
• March 16, 2020 (0.60 hrs) “Compile exhibits for fee petition; label & optimize.”
(ECF No. 31-6 at 5, 6, 8 and 9). 4
I shall reduce Ms. Green’s hourly rates billed on these kinds of paralegal tasks to
a more appropriate rate. These rates consist of $140 per hour for 2017, $150 per hour for
3This amount consists of ($300 - $265 = $35 x 5.7 hrs = $199.50) + ($317 - $280 = $37 x 13.5 hrs =
$499.50) + ($330 - $300 = $30 x 9.1 hrs = $273) + ($350 – $320 = $30 x 15.8 hrs = $474) = $1,446.00.
4 These are merely examples and not an exhaustive list.
4
2018, $156 per hour for 2019 and $163 per hour for time billed in 2020. This results in an
additional reduction of requested fees in the amount of $1,012.80. 5
C. Administrative Time
The filed billing records also reveal several instances in which work was performed
on tasks considered clerical or administrative. In the Vaccine Program, secretarial work
“should be considered as normal overhead office costs included within the attorney’s fee
rates.” Rochester v. U.S., 18 Cl. Ct. 379, 387 (1989); Dingle v. Sec’y of Health & Human
Servs., No. 08-579V, 2014 WL 630473, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014). “[B]illing
for clerical and other secretarial work is not permitted in the Vaccine Program.” Mostovoy,
2016 WL 720969, at *5 (citing Rochester, 18 Cl. Ct. at 387). Examples of these entries
include:
• October 24, 2017 (0.10 hrs) “Scan and save signed retainer agreement and health
authorization”;
• March 6, 2018 (0.10 hrs) “Sent NW authorization per request of IRM”;
• March 15, 2018 (0.20 hrs) “Sent payment for med recs”;
• October 30, 2018 (0.10 hrs) “Scan and save signed affidavit of petitioner”;
• November 9, 2018 (0.10 hrs) “Save and print appearance of Amy Kokot for
Respondent and update service list”; and
• March 5, 2020 (0.10 hrs) “Draft cover letter, mail settlement check to client; scan
& save.”
(ECF No. 31 -6 at 1-4 and 9). 6
5 This amount is calculated using Ms. Green’s already reduced hourly attorney rates; ($265 – $140 = $125
x 0.30 hrs = $37.50) + ($280 – $150 = $130 x 2.70 hrs = $351) + ($300 – $156 = $144 x 2.70 hrs =
$388.80) + ($320 - $163 = $157 x 1.50 hrs = $235.50) = $1,012,80.
6 These are merely examples and not an exhaustive list.
5
A total of 4.2 hours was billed by Ms. Green and her paralegals on tasks
considered administrative. I reduce the fees to be awarded by $1,093.10, reflecting time
spent on such administrative matters. 7
ATTORNEY COSTS
Petitioner requests $567.10 in overall costs. (ECF No. 31 at 5). This amount is
comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have
reviewed all of the requested costs and find them to be reasonable and shall award the
requested amount in full.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $12,924.50 (representing $12,357.40 in attorney’s fees and $567.10 in
costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s
counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules
of the Court), the Clerk shall enter judgment in accordance with this decision. 8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7This amount consists of ($150 x 1.1 hrs = $165) + ($156 x 0.1 hrs = $15.60) + ($265 x 0.10 hrs = $26.50)
+ ($280 x 0.60 hrs = $168) + ($300 x 0.90 hrs = $270) + ($320 x 1.40 hrs = $448) = $1,093.10.
8 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0407n.06
Case No. 16-5075
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Jul 14, 2017
DEBORAH S. HUNT, Clerk
SENTORYIA YOUNG, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
BRUCE WESTBROOKS, Warden, )
)
Respondent-Appellee. ) OPINION
BEFORE: BOGGS, MOORE, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Sentoryia Young appeals the district court’s denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted Young of second-
degree murder and two counts of aggravated assault following an altercation outside a Nashville
hotel, and he was sentenced to life in prison without parole. After an unsuccessful direct appeal
in state court, Young raised various claims in an initial state postconviction proceeding that were
all denied. Young then appealed, but his postconviction appellate counsel raised only some of
the rejected claims. The claims not raised were forfeited.
With his state law remedies exhausted, Young filed a 25-claim petition for a writ of
habeas corpus in federal court. The district court found that all of Young’s claims were either
procedurally defaulted or meritless. It granted Young a certificate of appealability, however, on
the question of whether Young’s postconviction appellate counsel was so ineffective as to have
Case No. 16-5075, Young v. Westbrooks
abandoned him. R. 79, Order at 2, PID 2991. Abandonment would constitute cause to excuse
the default of eight claims raised by Young’s initial postconviction counsel, but not by his
appellate counsel. See Maples v. Thomas, 565 U.S. 266 (2012). We also granted Young’s
motion to expand the certificate of appealability to include the question of whether the district
court erred in denying Young’s request to depose his postconviction appellate counsel. See App.
R. 11, Order at 7. For the following reasons, we conclude that neither claim merits relief, and we
consequently affirm.
I
In 2002, Sentoryia Young and several friends returned to a Nashville hotel room with two
women from a strip club who agreed to have sex with them for $250. State v. Young, No.
M2005-01873-CCA-R3-CD, 2008 WL 2026108, at *1 (Tenn. Crim. App. May 12, 2008), app.
denied (Tenn. Dec. 8, 2008). After they paid the women, and as three of the men were leaving
the hotel in a car, one of the women noticed that her money was missing. Id. An argument
broke out over the allegedly stolen cash, and someone accused one of the passengers in the car of
cocking his gun. Id. According to evidence adduced at trial, upon hearing this information,
Young approached the car and fired multiple shots, killing the driver and injuring the two
passengers. Id. at *1-*2.
Young was subsequently charged with one count of second-degree murder and two
counts of aggravated assault for his involvement in the altercation. Id. at *1; see also R. 34-1,
Indictment at 8–10, PID 278–80. The state’s first attempt to convict Young ended in a mistrial
after a police officer mentioned Young’s prior criminal history, despite being warned by the
judge not to do so. R. 34-1, Trial Ct. Minutes at 98, PID 368. At the conclusion of Young’s
second trial, a jury found Young guilty on all counts, and he was sentenced to life in prison
without parole. R. 34-1, Judgments at 157–59, PID 427–29. Following his conviction, Young
-2-
Case No. 16-5075, Young v. Westbrooks
requested a stay of his direct appeal so that he could file a petition for a writ of error coram nobis
in the trial court. Young, 2008 WL 2026108, at *2. Young sought this equitable relief based
upon newly discovered evidence indicating that a chart used by the state at trial, but not admitted
into evidence, might have been present in the jury room during deliberations. R. 30, Second
Amended Habeas Pet. at 33, PID 143. The state trial court denied Young’s petition and, in a
consolidated appeal, the Tennessee Court of Criminal Appeals affirmed both the denial of this
petition and Young’s conviction and sentence. Young, 2008 WL 2026108, at *1. The Tennessee
Supreme Court declined review. Id.
Next, Young filed a pro se petition for state postconviction relief and later filed an
amended petition through appointed counsel that raised approximately twenty grounds for relief,
including sixteen claims of ineffective assistance of trial and appellate counsel. R. 34-27,
Amended Pet. for Post-Conviction Relief at 40–44, PID 2415–19. Each ineffective-assistance
claim was one sentence long. After an evidentiary hearing that included testimony from
Young’s trial attorneys, Young’s initial postconviction counsel filed a Post-Hearing
Memorandum focusing on only three of the ineffective-assistance-of-trial-counsel claims raised
in the amended petition: counsel’s failure to move for a mistrial with prejudice, counsel’s
incompetent use of peremptory strikes, and counsel’s failure to impeach a witness during the
error coram nobis proceeding. R. 34-27, Post-Hearing Memorandum at 48–50, PID 2423–25.
Little to no evidence was presented on Young’s remaining claims. The trial court denied
Young’s petition. R. 34-27, Memorandum Op. & Order at 58–64, PID 2433–39.
Young was then appointed new counsel, Hershell Koger, R. 34-37, Order Substituting
Counsel at 67, PID 2442, who filed a timely notice of appeal on Young’s behalf, R. 34-27,
Notice of Appeal at 69, PID 2444. It is Koger’s conduct that forms the basis of the appeal now
before us. Young faults Koger for only re-raising four ineffective-assistance-of-counsel claims:
-3-
Case No. 16-5075, Young v. Westbrooks
the three that initial postconviction counsel focused on in his post-hearing memo and the
additional claim that trial counsel failed to move to strike the entire venire after emotionally-
charged testimony from a prospective juror. R. 34-28, Post-Conviction Appellant Br. at 13–16.
In addition to alleging that Koger abandoned claims that were “clearly meritorious,”
Appellant Br. at 16, Young takes issues with other aspects of Koger’s representation as well. For
instance, Young claims that Koger never communicated with him, despite Young’s repeated
efforts to contact him. See Appellant Br. at 11. Koger’s apparent silence prompted Young to
contact his former trial attorney in an effort to ascertain the status of his appeal. Id. n.11. She, in
turn, attempted to contact Koger directly—and indirectly through others—apparently to no avail.
R. 71-1, Decl. of Amy D. Harwell ¶¶ 19–20, PID 2754–55.
Young also points to missed deadlines and a tardy filing as further evidence of Koger’s
dilatory conduct. Specifically, before filing Young’s 17-page brief, Koger filed two motions for
extensions, one of which reached the court two days after Young’s brief was due. R. 71-3,
Motions for Extension at 2, 4, PID 2760, 2762. The Tennessee Court of Criminal Appeals
granted both motions. See, e.g., R. 71-3, Order at 6, PID 2764. After the second deadline
passed, Young filed a complaint with the court, saying he was concerned because he knew his
brief was past due based on “what [Koger] told [him].” R. 71-5, Formal Complaint at 2, PID
2771. Koger filed a brief shortly thereafter, however, and the state court took no action on
Young’s complaint. Since this brief was filed a month and a half past the deadline, it was
accompanied by a motion requesting permission to file. R. 71-3, Motion to Late-File at 7–8, PID
2764–65. The state appellate court accepted the tardy brief and proceeded to consider—and
reject on the merits—each of the four issues raised therein, and the Tennessee Supreme Court
denied Young leave to appeal. Young v. State, No. 2010-01762-CCA-R3-PC, 2011 WL 3630128
(Tenn. Crim. App. Aug. 18, 2011), app. denied (Tenn. Nov. 16, 2011).
-4-
Case No. 16-5075, Young v. Westbrooks
Having exhausted state remedies, Young, again represented by new counsel, filed for
habeas relief in federal court, raising twenty-five claims for relief. R. 30, Second Amended Pet.
for a Writ of Habeas Corpus at 40–91, PID 150–201. Eight of these claims were raised during
Young’s initial state postconviction proceedings and denied on the merits, but not re-raised by
Koger on state postconviction appeal. Conceding that these claims were procedurally defaulted,
Young nevertheless argued that he was entitled to have a federal court review them because
Koger had either been ineffective in failing to raise them, or had actually abandoned him
altogether. In either case, Young contended, Koger’s behavior established the requisite cause to
excuse this default.
The district court rejected Young’s arguments. First, it concluded that even if Koger had
been ineffective, this would not entitle Young to relief under Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), since the ineffectiveness of postconviction
appellate counsel can never constitute cause to excuse a procedural default. R. 78, Memorandum
Op. at 18–19, PID 2957–58. And second, the court held that Koger had not abandoned Young,
so Young could not establish cause under Maples v. Thomas, 565 U.S. 266 (2012), either. Id. at
19–21, PID 2958–60. The district court issued a certificate of appealability on the latter
question, and we expanded the certificate to include the claim that the district court should have
granted Young’s request to depose Koger. App. R. 11, Order at 4.
II
In reviewing the denial of Young’s § 2254 petition, we review the district court’s legal
conclusions de novo and its factual findings for clear error. King v. Westbrooks, 847 F.3d 788,
795 (6th Cir. 2017). A finding that a habeas petitioner’s claim is barred by procedural default is
reviewed de novo. See Hodges v. Colson, 727 F.3d 517, 529 (6th Cir. 2013). A district court’s
-5-
Case No. 16-5075, Young v. Westbrooks
decision to deny a discovery request is reviewed for an abuse of discretion. Williams v. Bagley,
380 F.3d 932, 974 (6th Cir. 2004).
III
We conclude that Young has failed to demonstrate that Hershell Koger, Young’s
postconviction appellate counsel, abandoned him, since Koger continued to act as Young’s agent
by filing a brief on his behalf. Instead, Young’s abandonment claim is actually, in essence, one
for ineffective assistance of counsel. But under binding precedent, postconviction appellate
counsel’s ineffective assistance cannot serve as cause to excuse a procedural default. Finally,
because the record before us is sufficiently developed to support a finding that Koger did not
abandon Young, we find no error in the trial court’s denial of Young’s request to depose Koger,
as doing so would have been futile.
A
Before reaching the merits, we first consider the narrow circumstances under which a
postconviction counsel’s actions may serve as cause to overcome a procedural default.
Habeas courts reviewing the constitutionality of state prisoners’ convictions and
sentences are guided by statutory and judicially-created doctrines that seek to promote principles
of finality and comity by limiting federal court review. One of these doctrines is the doctrine of
procedural default, “under which a federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear because the prisoner failed to abide by a
state procedural rule.” Martinez, 566 U.S. at 9. Generally, if a petitioner “fails to raise a claim
on appeal, in violation of a state procedural rule, that claim is subject to procedural default” and
will not be entertained by federal courts. West v. Carpenter, 790 F.3d 693, 697 (6th Cir. 2015).
A petitioner’s procedural default on a claim may be excused—and a prisoner entitled to
federal-court review—if he can demonstrate (1) cause for the default and (2) actual prejudice
-6-
Case No. 16-5075, Young v. Westbrooks
suffered as a result. See Maples, 565 U.S. at 280. Cause exists when “something external to the
petitioner, something that cannot fairly be attributed to him, . . . impeded his efforts to comply
with the State’s procedural rule.” Id. (internal quotations and alterations omitted). As a general
principle, counsel is an agent that a client controls, so mere “[a]ttorney ignorance or
inadvertence” is not normally considered “external” to a petitioner and thus will not excuse
procedural default. See Coleman v. Thompson, 501 U.S. 722, 753–54 (1991). Ineffective
assistance of counsel can constitute cause to excuse a procedural default, however, in some
circumstances. Typically, these circumstances arise only when a petitioner has a Sixth
Amendment right to an attorney, such as at trial or on direct review. In these instances, the
default caused by the deficiency in counsel’s representation is imputed to the state and thus
deemed external to the petitioner himself. Id. at 754. During postconviction proceedings,
however, the general rule is that ineffective assistance of counsel cannot establish cause to
excuse a procedural default because there is no constitutional right to an attorney in such
proceedings. Id. Instead, petitioners are forced to “bear the risk” of any attorney errors that may
occur during collateral review. Id. at 753.
In Martinez v. Ryan, the Supreme Court crafted a “narrow exception” to this general rule
that ineffective assistance of postconviction counsel cannot qualify as cause. The Martinez
Court concluded that “[i]nadequate assistance of counsel at initial-review collateral proceedings
may establish cause for a prisoner’s default of a claim of ineffective assistance at trial.”
Martinez, 566 U.S. at 9 (emphasis added). In other words, if a state requires a petitioner to raise
claims of ineffective assistance of trial counsel for the first time on collateral review, and initial
postconviction counsel is ineffective in failing to do so, this can constitute cause to excuse a
procedural default if the unraised claims were substantial. See id. at 9–11. The effect of this
exception, then, is to permit a federal habeas court to hear ineffective-assistance-of-trial-counsel
-7-
Case No. 16-5075, Young v. Westbrooks
claims that were not raised in state court due to initial postconviction counsel’s ineffectiveness.
Id. at 17.
A year later, in Trevino v. Thaler, the Supreme Court extended Martinez to apply in
situations where, although states may technically permit petitioners to bring ineffective-
assistance-of-trial-counsel claims on direct review, as a practical matter, the state’s procedural
framework makes it “highly unlikely” that a prisoner “will have a meaningful opportunity” to do
so. Trevino, 133 S. Ct. at 1921.
Apart from the Martinez-Trevino line of cases, the Supreme Court has described a second
scenario where counsel’s behavior during postconviction proceedings might provide the requisite
cause to excuse the procedural default of a petitioner’s claims. In Maples v. Thomas, the Court
held that a petitioner had shown cause after his attorneys of record abandoned him without
warning and caused him to miss the deadline to file a postconviction appeal. Maples, 565 U.S. at
289.
Maples had been convicted of murder and sentenced to death in Alabama, and had
secured two attorneys from the New York law firm of Sullivan & Cromwell to represent him
during state postconviction proceedings. Id. at 270. The attorneys filed an initial petition for
relief on Maples’s behalf, but they left the firm to take jobs elsewhere while the petition was
pending. Id. at 275. Their new employment prohibited them from continuing to represent
Maples and they accordingly stopped working on his case, but they never notified Maples or the
court of their departure, and no other attorney assumed representation of Maples in the interim.
Id. at 275–76.
Thus, when the trial court issued an order denying his petition, Maples was never
notified, causing him to miss the 42-day window to file a postconviction appeal. Id. at 276–77.
When Maples learned of this much later, he secured new representation, exhausted all possible
-8-
Case No. 16-5075, Young v. Westbrooks
remaining state-court avenues for relief, and eventually filed a habeas petition in federal court.
Id. at 277–78. The district court nevertheless found that Maples’s claims were procedurally
defaulted since he had missed the filing deadline to appeal them, and any claim of his
postconviction appellate counsels’ ineffectiveness could not serve as cause to lift the procedural
bar under Coleman. Id. at 279. The Eleventh Circuit affirmed this holding.
The Supreme Court reversed, however. It distinguished Coleman by drawing a line
between claims of attorney error on the one hand, governed by Coleman, Martinez, and Trevino,
and claims of attorney abandonment on the other. Id. at 282. Notwithstanding the Martinez-
Trevino exception, while a petitioner is ordinarily bound by postconviction counsel’s
negligence—“however egregious”—, a “markedly different situation” arises “when an attorney
abandons his client without notice.” Id. at 281–82. In the former scenario, counsel still acts as
the petitioner’s agent, just not effectively. In the latter case, the principal-agent relationship is
severed, and “a client [cannot] be faulted for failing to act on his own behalf when he lacks
reason to believe his attorneys of record, in fact, are not representing him.” Id. at 283. Thus,
when “extraordinary circumstances” exist and an attorney ceases to operate as a petitioner’s
agent “in any meaningful sense of that word,” the petitioner has been abandoned, and the
procedural bar to federal habeas review may be lifted.
According to the Court, Maples’s situation was indeed “extraordinary.” He “lacked the
assistance of any authorized attorney” during the 42-day postconviction appeal window. Id. at
288–89. The conduct of Maples’s attorneys went beyond negligence—they had “severed their
agency relationship with Maples” when they assumed new employment, which by law “disabled
them from continuing to represent Maples.” Id. at 283–84 (citing Restatement (Second) of
Agency § 112 (1957)). Moreover, after their departure, no other attorneys assumed
representation of Maples: neither other lawyers at Sullivan & Cromwell, since none were
-9-
Case No. 16-5075, Young v. Westbrooks
licensed to practice law in Alabama, id. at 286, nor associated local counsel, as he explicitly
declined to “deal with substantive issues in the case,” id. at 287. Compounding the problem,
Maples had no reason “to suspect that he lacked counsel able and willing to represent him,”
thereby closing the door on any remaining chance to ensure that his postconviction appellate
brief was timely filed. Id. at 288–89.
By abandoning their duty of representation, Maples’s attorneys singlehandedly caused
him to miss the deadline for filing his brief, which resulted in the procedural default of all his
claims and ended any hope of having his death sentence overturned. The Court found that
Maples had been “disarmed” by these “uncommon facts” and “extraordinary circumstances,” and
held that his attorneys’ abandonment was cause to excuse the default, thereby permitting him to
raise claims in federal court that had otherwise been forfeited when he missed the deadline to file
a postconviction appeal. Id. at 280, 289.
B
With this overview in mind, we turn to Young’s first claim for relief: that he, like
Maples, was abandoned by his postconviction appellate counsel. Thus, according to Young, he
too should have his procedural default excused. We disagree. Unlike Maples, Young was not
abandoned because there was no severance of the attorney-client relationship.
According to Young, his postconviction appellate counsel “did absolutely nothing of
value during his ‘representation’” and this amounted to “effective abandonment.” Appellant Br.
at 11, 13. He highlights three problems with Koger’s representation that he says evince
abandonment: first, that counsel missed filing deadlines and ultimately filed a late brief with the
court; second, that counsel failed to raise “the best and most obvious issues” in his appeal; and
third, that counsel never communicated with him during the course of his representation. While
- 10 -
Case No. 16-5075, Young v. Westbrooks
each of Young’s allegations of counsel’s failings cause us to question counsel’s “effectiveness,”
they do not—separately or when considered together—constitute “abandonment.”
Young’s first two allegations—that Koger missed filing deadlines and did not raise the
most meritorious issues—offer little support for abandonment. First, the fact that Koger missed
multiple deadlines to file Koger’s brief may indicate Koger was negligent, and thus ineffective,
but does not show that he quit on Young’s case. Maples, 565 U.S. at 281 (reaffirming the
general rule that “when a petitioner’s postconviction attorney misses a filing deadline [due to
attorney negligence], the petitioner is bound by the oversight and cannot rely on it to establish
cause”); see also Ryder v. Sec’y Dep’t of Corrs., 521 F. App’x 817, 820 (11th Cir. 2013).
Koger’s requests for extensions and his motion asking the court to consider his late brief show
that he continued to act on Young’s behalf—albeit in a negligent manner. See R. 71-3, Motions
for Extension at 2, 4 PID 2760, 2762 (explaining that preparing for impending jury trials and
hearings in other cases and attending to personal matters, “[i]n addition to working on [Young’s
brief],” prevented timely filing); R. 71-3, Motion to Late File at 7, PID 2765 (admitting he had
mistakenly believed Young’s brief was due later than the actual due date and citing “counsel
error and oversight”).
Koger’s actions are distinguishable from those of the attorneys in Maples. There,
Maples’s attorneys never requested any time extensions, failed to file a notice of appeal
altogether, and never filed any brief on his behalf—all of the evidence showed that they had
ceased their representation and had abandoned his case. Maples, 565 U.S. at 276–77.
Furthermore, while the state court in Maples refused to reissue its order denying Maples relief,
which would have restarted the clock and permitted Maples to timely file despite his attorneys’
abandonment, Maples, 565 U.S. at 277, here the Tennessee Court of Criminal Appeals permitted
- 11 -
Case No. 16-5075, Young v. Westbrooks
Koger’s tardy filing and proceeded to consider the merits of Young’s claims, see Young v. State,
2011 WL 3630128.
Young’s second argument is that, although the state appellate court heard some of his
claims, it did not hear them all since Koger “abandon[ed] Mr. Young’s best issues for obtaining
relief.” See Appellant Br. at 9. But this argument is a nonstarter since claim abandonment—
while perhaps ineffective assistance—is not the same as client abandonment. See, e.g., Towery
v. Ryan, 673 F.3d 933, 942 (9th Cir. 2012) (finding “no authority for the proposition that
counsel’s failure to raise a colorable habeas claim . . . severs the attorney-client relationship,”
and concluding on similar facts that petitioner’s counsel was, at most, “negligent in failing to
raise a colorable . . . claim”); Wilkins v. Stephens, 560 F. App’x 299, 304 (5th Cir. 2014) (“We
have noted that counsel’s failure to raise all issues a petitioner would like to argue does not
amount to abandonment.”). The type of abandonment contemplated by the Court in Maples
occurs when a petitioner is “left without any functioning attorney of record.” Maples, 565 U.S.
at 288. But here Koger continued to function as Young’s attorney by filing a 17-page brief and
raising four claims for relief on his behalf—including the only three claims that the initial
postconviction counsel viewed worthy of pressing.
Finally, Young asserts that counsel’s “complete lack of communication” demonstrates
abandonment. He claims to never have spoken to Koger throughout his appeal, despite repeated
attempts to reach him, both by contacting him directly and by asking his trial counsel to call
Koger on his behalf. See, e.g., Appellant Br. at 11 & n.2. Young also lodged a complaint
against Koger with the state court, claiming that “not once have I ever spoken to Mr. Koger.” R.
71-5, Formal Complaint at 2, PID 2771. In that same complaint, however, Young admits that
Koger “told [him]” that his brief “was due . . . in mid-February.” Id. This seems to indicate at
least one instance of communication between Koger and Young. See R. 71-3, Motions for
- 12 -
Case No. 16-5075, Young v. Westbrooks
Extensions at 2, PID 2760. This apparent contradiction aside, Young’s claims regarding Koger’s
nonresponsiveness are indeed problematic. Koger was likely negligent in failing to respond to
Young’s calls, perhaps grossly so. But this lack of communication, in light of all of the facts
presented, does not result in “the markedly different situation” that arises when “an attorney
abandons his client.” Maples, 265 U.S. at 281.
In Maples, the attorneys’ lack of communication—the failure to inform Maples that the
state trial court had denied his petition and the failure to notify him of his 42-day window to file
an appeal—supported the idea that the attorneys had “severed their agency relationship with
Maples.” Id. at 283. That severance occurred by law upon “the attorneys’ departure from
Sullivan & Cromwell and their commencement of employment that prevented them from
representing Maples,” as it created a conflict of interest that resulted in a breach of their duty of
loyalty. Id. at 284 (citing Restatement (Second) of Agency § 112 (1957)). Moreover, no other
attorney assumed representation of Maples in the interim. Id. at 286–88. The lack of
communication was a result of the severance, not a cause; no one communicated with Maples
because no one was representing him. Id. at 282 (concluding that Maples had been left “without
any functioning attorney of record”).
Here, unlike in Maples, there was no severance of the agency relationship. Koger never
assumed different employment that created a conflict of interest “disabl[ing] him” from
representing Young, id. at 270, or otherwise appeared to breach his duty of loyalty, for example,
by putting his own or another’s interests ahead of Young’s. See Restatement (Second) of
Agency, § 112, Comment b. Although Koger may not have communicated with Young, his
other actions indicate that he continued working on Young’s behalf. First, Koger filed a timely
notice of appeal. R. 34-27, Notice of Appeal at 69, PID 2444. Second, he filed two motions
seeking extensions for the time to file Young’s brief, which indicated that he was aware of his
- 13 -
Case No. 16-5075, Young v. Westbrooks
obligations to represent Young and was continuing to pursue relief on his behalf. R. 71-3,
Motions for Extension at 2, 4, PID 2760, 2762. Lastly, Koger filed a brief—an action clearly in
furtherance of Young’s interests, R. 34-28, Postconviction Appellant Br. at 3–19, PID 2510–26.
To be clear, Koger should have communicated with Young. But that evidence alone does
not convince us that Koger actually abandoned Young. See Cadet v. State of Florida Dep’t of
Corr., 853 F.3d 1216, 1234 (11th Cir. 2017) (recognizing that abandonment “denotes
renunciation or withdrawal, or a rejection or desertion of one’s responsibilities, a walking away
from the relationship”). Unlike the petitioner in Maples, Young was not “effectively deprived of
legal representation.” Maples, 565 U.S. at 290 (Alito, J., concurring). Instead, Koger’s lack of
communication speaks to his dilatory and ineffective behavior. See, e.g., Howard v. United
States, 743 F.3d 459, 467–68 (6th Cir. 2014) (analyzing a § 2255 petitioner’s claim that counsel
“failed to communicate with him” under Strickland’s ineffective assistance standard). We, like
the district court, encourage Young to “submit a complaint . . . to the Tennessee Board of
Professional Responsibility.” R. 78, Memorandum Op. at 20, PID 2959. But “however
egregious” Koger’s behavior may have been in failing to communicate during the course of his
representation of Young, that representation continued nonetheless. See Maples, 565 U.S. at
282.
The dissent disagrees. It would hold that Koger’s failure to communicate was alone
sufficient to establish abandonment and sever the agency relationship between Koger and
Young.1 See Dissent at 4. To support this assertion, it cites a sentence from Maples that quotes
1
The dissent does not say when exactly Koger’s lack of communication purportedly
severed the agency relationship, leaving its theory to pose a whole host of line-drawing
problems. For example, how long must an attorney’s lapse in communication with a client linger
before the agency relationship can be sua sponte severed? And can it be restored? What if an
attorney communicates with a client only once, and only by letter, as it is likely Koger did here?
- 14 -
Case No. 16-5075, Young v. Westbrooks
Justice Alito’s concurring opinion in Holland v. Florida, 565 U.S. 631 (2010), suggesting that
extraordinary circumstances warranting equitable tolling of AEDPA’s 1-year statute of
limitations may be established by “counsel’s near-total failure to communicate with petitioner.”
Maples, 565 U.S. at 282 (quoting Holland, 560 U.S. at 659 (Alito, J., concurring)).
But Maples relies on this statement only insofar as a lack of communication might show
that “an attorney [] is not operating as [a client’s] agent in any meaningful sense of that word.”
Id. Maples does not establish that a failure to communicate by itself will always be sufficient to
establish abandonment. 2
To the contrary, the facts in Maples and Holland indicate a higher bar for abandonment.
In both cases, the Court credited a whole host of attorney misconduct—only one element of
which was some form of deficient communication—that gave rise to a severance of the agency
relationship and the ultimate finding of abandonment. See Holland, 560 U.S. at 652 (analyzing
whether Holland’s behavior was “extraordinary” when he “failed to file Holland’s federal
petition on time despite Holland’s many letters that repeatedly emphasized the importance of
doing so,” “did not do the research necessary to find out the proper filing deadline, despite
2
The dissent also contends that, because in its view Koger’s lack of communication
severed the agency relationship, Koger “lacked the authority” to file Young’s brief. Dissent at 6.
This is incorrect. Not only did the agency relationship remain intact, giving Koger authority to
file, but as appointed counsel for Young, he was required to continue representing Young in the
absence of the state court granting him permission to withdraw. See Tennessee Supreme Court
Rule 13 § 1(e)(5). Thus, although Young sought to remove Koger, the state court chose to credit
Koger’s late-filed brief rather than appoint new counsel, a decision it was entitled to make. Even
when a petitioner has a Sixth Amendment right to counsel—which Young did not have at this
stage in the proceedings—he does not have a right to his choice of court-appointed counsel.
Daniels v. Lafler, 510 F.3d 735, 737 (6th Cir. 2007). The dissent makes this lack-of-authority
argument because otherwise it makes little sense to claim that Young had been abandoned by
Koger’s lack of communication, but at the same time acknowledge that Koger did later file a
brief on Young’s behalf, which is clearly evidence in furtherance of the agency relationship. But
under the type of abandonment contemplated by Maples, an attorney-client relationship is only
severed when a petitioner is left “without any functioning attorney of record.” Maples, 565 U.S.
at 288.
- 15 -
Case No. 16-5075, Young v. Westbrooks
Holland’s letters that went so far as to identify the applicable legal rules,” “failed to inform
Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his
case,” and “failed to communicate with [Holland]”); Maples, 565 U.S. at 290 (Alito, J.,
concurring) (listing “no fewer than eight unfortunate events”—only one of which involved
counsels’ “failure to notify petitioner”—that led to Maples being “effectively deprived of legal
representation”). Here, despite Koger’s lack of communication, his other actions do not suggest
a severance of the agency relationship.
Quite simply, the factual scenarios presented by Maples and Holland are very different
from the circumstances present here. In both cases, the attorneys’ failure to file anything on the
petitioners’ behalf prevented them from seeking relief from their death sentences: Holland
missed the deadline to file a petition for federal habeas relief, Holland, 560 U.S. at 638, and
Maples missed the deadline to file a notice of appeal from the state trial court’s denial of his state
habeas petition, Maples, 565 U.S. at 271. But here Koger did file a brief for Young and
preserved his ability to seek future relief from conviction. Furthermore, the cases Young relies
on to support his abandonment theory all involve circumstances much more akin to Maples. See
Thomas v. A.G. of Fla., 795 F.3d 1293, 1287 (11th Cir. 2015) (remanding the case to the district
court to determine whether the conduct of Thomas’s lawyer amounted to abandonment in the
context of equitable tolling, while noting that Maples presented a “distinct” question from the
one before it); Downs v. McNeil, 520 F.3d 1311, 1321 (11th Cir. 2008) (equitable tolling);
Mackey v. Hoffman, 682 F.3d 1247, 1248, 1252–53 (9th Cir. 2012) (finding that, on facts similar
to Maples, a petitioner could pursue an abandonment theory to obtain relief under Rule 60(b)(6),
but remanding to the district court to make a finding to this effect).
The Maples Court was careful to cabin its abandonment finding to the “extraordinary
circumstances” and “uncommon facts” presented by that case. Maples, 565 U.S. at 280, 289.
- 16 -
Case No. 16-5075, Young v. Westbrooks
Here, the fact that Koger filed a timely notice of appeal and raised four colorable claims of relief
that were considered on the merits by the Tennessee Court of Criminal Appeals sufficiently
distinguishes this case from the “veritable perfect storm of misfortune,” id. at 291 (Alito, J.,
concurring), that befell the petitioner in Maples. While we do not condone counsel’s behavior,
we are also not at liberty to provide relief when the law simply does not provide for it. To our
knowledge, no other court of appeals has held that a lawyer abandons his client despite filing a
brief on his behalf, and we will not be the first to extend Maples in this fashion.
At bottom, Young’s argument amounts to the fact that Koger’s lack of communication
resulted in the abandonment of certain claims for relief, not that counsel abandoned him
altogether. Two hypotheticals help illustrate this point. First, if Koger had not communicated
with Young at all, but had raised all of the claims in Young’s initial postconviction petition,
presumably Young would have no basis for an abandonment claim. Likewise, if Koger had been
a model communicator, but still chose to only raise the same four claims, Young could not have
insisted that he had been abandoned. The ultimate decision about what claims to raise lies with
counsel, see Hutchinson v. Florida, 677 F.3d 1097, 1107 (11th Cir. 2012), and the failure to raise
even a colorable claim, while perhaps amounting to ineffective assistance, cannot sever the
attorney-client relationship. See Towery, 673 F.3d at 942. Young’s characterization of his
ineffectiveness claim as one of abandonment, is the exact type of “word game” Justice Scalia
warned against in his dissent in Maples. See Maples, 565 U.S. at 298–99 (Scalia, J., dissenting)
(opining that the Court’s “opinion will serve as a template for future habeas petitioners seeking
to evade Coleman's holding that ineffectiveness of postconviction counsel will not furnish cause
to excuse a procedural default,” and that “[t]he trick will be to allege, not that counsel was
ineffective, but rather that counsel's ineffectiveness demonstrates that he was not a genuinely
- 17 -
Case No. 16-5075, Young v. Westbrooks
representative agent”). Because Young has not demonstrated that his postconviction appellate
counsel actually abandoned him, we reject his argument.
Lastly, we note that Young cannot establish prejudice resulting from Koger’s alleged
abandonment. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that prejudice
results when there is a “reasonable probability . . . that, but for counsel’s unprofessional errors,
[the] result of the proceeding would have been different”). In attempting to contact Koger,
Young was solely concerned with making sure that an appellate brief was filed on his behalf.
See, e.g., R. 71-1, Decl. of Amy Harwell ¶ 19, PID 2754 (“Mr. Young contacted me concerned
about whether an appellate brief had been filed”). But this concern appears to have been
alleviated when the Tennessee Court of Criminal Appeals accepted Koger’s late brief and
considered it on the merits. Young never manifested any desire that Koger raise certain claims.
Additionally, the claims not raised by Koger appear to lack merit in any event. Although
Young contends that Koger failed to raise the “best and most obvious issues,” in his brief, this
allegation is belied by the record, especially when viewing it through AEDPA’s deferential lens.
Instead, the record indicates that Koger may have raised the only issues for which there existed
any actual evidence. While Young highlights the fact that postconviction counsel raised twenty
grounds for relief, and Koger only four, this comparison is misleading. In reality, initial
postconviction counsel focused on only a few claims at the evidentiary hearing. See generally R.
34-27, Transcript at 73–132, PID 2448–2507. The remaining ineffective-assistance-of-counsel
claims were simply stated in single, conclusory sentences in the initial petition. See, e.g., R.34-
27, Amended Pet. for Post-Conviction Relief at 41, PID 2416 (“Petitioner’s trial counsel failed to
properly investigate the matter”; “Petitioner’s trial counsel failed to present all available
evidence on behalf of the Petitioner at trial.”). This led the state court to focus on only five of
Young’s claims and dismiss the others summarily since there was “no evidence [presented] to
- 18 -
Case No. 16-5075, Young v. Westbrooks
establish the legitimacy of any other allegations.” R. 34-27, Op. of Initial Postconviction Ct. at
64, PID 2439. Therefore, rather than “slap[ing] together” a brief at the last minute, as Young
alleges he did, it is plausible that Koger made a strategic decision and concluded that the four
issues he chose to raise were the only ones for which there existed any likelihood of relief.3
IV
In the alternative, Young argues that if he was not abandoned, Koger was at least
ineffective in his representation and that this alone should be cause to lift the procedural bar for
the eight claims he now seeks to raise. But Young was not granted a certificate of appealability
on this claim, so it is not properly before us. And even if it were, it is fully foreclosed by
Coleman’s general rule that ineffective assistance of postconviction counsel cannot serve as
3
Apparently the dissent would be dissatisfied with Koger’s representation unless he
raised each of the five claims discussed by the state court. See Dissent at 9. But even
“[e]ffective appellate counsel should not raise every nonfrivolous argument on appeal, but rather
only those arguments most likely to succeed.” Davila v. Davis, No. 16-6219, 2017 WL
2722418, at *10 (U.S. June 26, 2017) (emphasis added). Instead, the fact that Koger chose to
raise only two of those claims, coupled with two additional issues not thoroughly addressed by
the state court, sound more in strategy than abandonment. These decisions also belie the
dissent’s accusations that Koger “failed to research the substantive issues in Young’s appeal”—a
statement entirely devoid of supporting record evidence. See Dissent at 5.
Furthermore, while the dissent suggests there is evidence in the record for Young’s claim
that his trial counsel was ineffective in failing to request removal of a sleeping juror—a claim
rejected on the merits by the state court but omitted from Koger’s brief—this is simply not the
case. This conclusion is buttressed by the fact that our review of the state court’s rejection would
be subject to AEDPA deference, allowing us to ask only whether such a decision was “based on
an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d). To seemingly create
merit in the sleeping juror claim, the dissent cites an affidavit of a law clerk who claims that she
“heard about one of the jurors sleeping through the whole trial.” But this person admitted that
she “did not actually watch the trial or listen to it.” R. 71-4, Guerra Aff. ¶ 3, PID 2768. And
Young’s trial counsel—who was present in the courtroom—testified that she “d[idn]’t know” for
how long, or during which parts of the trial, the juror was allegedly sleeping. R. 34-27, Hearing
Tr. at 96, PID 2471. Presented with this vague and uncertain testimony, it is difficult to see how
the state court would have reached any other outcome, let alone how we could now conclude that
such an outcome was “based on an unreasonable determination of the facts.”
- 19 -
Case No. 16-5075, Young v. Westbrooks
cause. See Coleman, 501 U.S. at 754. Nor does it fall within Martinez’s exception to this rule,
which permitted only initial postconviction counsel’s ineffectiveness to serve as cause in limited
circumstances. See Martinez, 566 U.S. at 916 (concluding that its “narrow exception” “does not
concern attorney errors in other kinds of proceedings, including appeals from initial-review
collateral proceedings”) (emphasis added). Here, Young’s initial postconviction counsel raised
all of the claims whose default he now seeks to have excused, and the state trial court heard—
and rejected—them on the merits. It was his postconviction appellate counsel’s failure to re-
raise certain of these claims that Young takes issue with. But, unfortunately for Young,
ineffective assistance of postconviction appellate counsel simply cannot serve as cause to excuse
this procedural default.
This understanding has been reaffirmed in our circuit on several occasions. See West,
790 F.3d at 698 (reiterating the notion that “the Martinez-Trevino exception does not extend to
attorney error at post-conviction appellate proceedings because those proceedings are not the
‘first occasion’ at which an inmate could meaningfully raise an ineffective-assistance-of-trial-
counsel claim”); Middlebrooks v. Carpenter, 843 F.3d 1127, 1136 (6th Cir. 2016) (“[T]he
Martinez-Trevino exception does not apply to save procedural defaults that occur in ‘appeals
from initial-review collateral proceedings.’” (quoting Martinez, 566 U.S. at 16)).
Perhaps recognizing this argument is foreclosed by precedent, Young asks us to
reconsider part of our decision in Hodges v. Colson “that limited Martinez/Trevino to ineffective
assistance of trial counsel (IATC) claims alone” and instead expand that exception to include
claims of ineffective assistance of appellate counsel. See Appellant Br. at 25–26 (emphasis
added). But this argument was expressly rejected by the Supreme Court in Davila v. Davis, No.
16-6219, 2017 WL 2722418, at *4 (U.S. June 26, 2017). And more importantly, in making this
argument, Young makes a crucial misstep. He conflates the stage of the postconviction
- 20 -
Case No. 16-5075, Young v. Westbrooks
proceedings that can establish cause with the type of claims whose default can be excused. The
Court in Martinez was clear that its exception only applied (1) during initial-review collateral
proceedings and (2) to excuse default for claims of ineffective assistance of counsel at trial.
Martinez, 566 U.S. at 15. It is this second aspect of Martinez that this court in Hodges and the
Supreme Court in Davila refused to extend. See Hodges, 727 F.3d at 531; Davila, 2017 WL
2722418, at *4 (holding that the Martinez exception only applies to excuse postconviction
counsel’s ineffectiveness of “a single claim—ineffective assistance of trial counsel . . .” and
declining to “extend that exception to allow federal courts to consider a different kind of
defaulted claim—ineffective assistance of appellate counsel”) (emphasis added).
Davila does not discuss the other aspect of Martinez’s holding, which states that initial-
review is the only stage of the postconviction proceedings that can furnish cause. Since Young
takes issue with his postconviction appellate counsel’s failings, not the performance of his
initial-review counsel, the Martinez-Trevino exception cannot apply to excuse the default of any
of his claims, be they claims of ineffectiveness of trial or appellate counsel. Accordingly, we
reject Young’s alternative argument.
V
Lastly, Young argues that the court should, at a minimum, permit him to depose Koger to
further develop his Maples abandonment claim. But in making this discovery request before the
district court, Young couched his request as one to “substantiate the factual predicate for his
claim that he has cause to overcome [the] procedural bar due to his counsel’s ineffective
assistance” under Martinez and Trevino. See R. 53 at 5, PID 2607 (emphasis added). Young
never cited Maples or his theory of effective abandonment as a reason for such discovery.
Therefore, the district court properly denied Young’s request because his assertion that
ineffective assistance of postconviction appellate counsel could serve as cause is firmly
- 21 -
Case No. 16-5075, Young v. Westbrooks
foreclosed by Supreme Court and Sixth Circuit precedent. See Coleman, 501 U.S. at 742–53;
West, 790 F.3d at 699. No amount of discovery was going to change that well-settled law. See
R. 66, Memorandum and Order Denying Pet.’s Mot. for Discovery at 1, PID 2673 (“Discovery
on a claim that is procedurally defaulted and has no chance to overcome that bar to review under
current standards would obviously be futile.”).
Even though Young never advanced below his need to depose Koger based on a Maples
theory of relief, it was nevertheless not an abuse of discretion for the district court to deny him
this opportunity. A habeas petitioner is “not entitled to discovery as a matter of ordinary
course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, a judge, “in the exercise of his
discretion,” may grant discovery “for good cause shown.” Id. (quoting Habeas Corpus Rule
6(a)). Good cause exists when a petitioner sets forth “specific allegations before the court [to]
show reason to believe that [he] may, if the facts are fully developed, be able to demonstrate . . .
entitle[ment] to relief.” Id. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).
Here, Young argues that deposing Koger would provide him the opportunity to “solidify
his [Maples] claim” and get counsel to “admit” to abandoning him. See Appellant Br. at 10;
Reply Br. at 8 n.4. However, in determining that Young was not abandoned, we accepted as true
all of his claims regarding counsel’s behavior. For example, we assumed that counsel did not
communicate with him, that counsel missed filing deadlines and filed a tardy brief, and that
counsel failed to raise claims that Young believed were the most meritorious issues on appeal.
Despite these examples of subpar performance, and even if Koger were to admit to them in a
deposition, there are sufficient undisputed indicia of continuing representation to compel the
conclusion that Young was not abandoned. Since the “facts essential to our decision are not in
doubt,” allowing Young to depose postconviction appellate counsel would be both wholly
unnecessary and futile. See Maples, 565 U.S. at 286 (finding the record sufficient to conclude
- 22 -
Case No. 16-5075, Young v. Westbrooks
that Maples had indeed been abandoned and that a remand for fuller factual development was
unnecessary).
VI
For the foregoing reasons, we affirm the district court’s denial of Young’s petition for
relief.
- 23 -
Case No. 16-5075, Young v. Westbrooks
KAREN NELSON MOORE, Circuit Judge, dissenting. Despite numerous efforts to
contact his court-appointed counsel, Sentoryia Young was never consulted about his state
postconviction appeal. After several months and three lapsed filing deadlines, Young wrote to
the state court requesting new counsel, explaining that after hundreds of unreturned phone calls,
Young had yet to meet, let alone speak with, his appellate counsel. When an appellate brief was
hastily filed by counsel a week later, with a motion to excuse the four-month delay, Young had
yet to be contacted by his counsel. Rather than appoint new counsel, the state appellate court
considered and rejected the brief on the merits, but did not address the eight claims raised below
that Young’s counsel neglected to raise on appeal. The majority contends that Young must now
bear the cost of the failures of his appellate counsel, whose actions caused the procedural default
of these claims. Because I believe that Young was abandoned under the standard in Maples v.
Thomas, 565 U.S. 266 (2012), I respectfully dissent.
Young argues that although he procedurally defaulted the claims not raised in his state
appellate brief, he can nonetheless establish cause for the default because his court-appointed
postconviction appellate counsel, Hershell Koger, abandoned him. Young states that Koger
never communicated with him regarding his case and failed to return hundreds of direct calls
made by Young. Appellant’s Br. at 11. After numerous failed attempts to reach Koger, Young
contacted Amy D. Harwell, who had represented Young at trial, and expressed concern about
whether an appeal brief had been filed in his postconviction proceedings. R. 71–1 (Harwell Aff.
at 5) (Page ID #2754). Harwell attempted to contact Koger directly multiple times, but was
unable to reach him. Id. at 6 (Page ID #2755). She observed that “on a number of occasions Mr.
Koger’s voice mail was full and not accepting calls.” Id. Paul Bruno, Young’s postconviction
trial counsel, also did not recall being able to contact Koger about Young’s case. R. 71–2 (Bruno
Aff. at 2) (Page ID #2758). Harwell ultimately contacted the trial court’s chambers to inquire
- 24 -
Case No. 16-5075, Young v. Westbrooks
whether an appeal brief had been filed in Young’s postconviction case. R. 71–1 (Harwell Aff. at
6) (Page ID #2755). Specifically, Harwell spoke with Grace Guerra, one of the clerks of the trial
court, who declared that upon hearing from Harwell:
I spoke to someone at the front desk [of the appellate court] and they said that
[Koger] had missed the deadline. I took it upon myself to call Koger because I
did not know if he knew that he had missed the deadline. . . . I called him and left
a voicemail. In the voicemail, I said that he could call my cell phone. I rarely
give out my cell phone number to attorneys, but felt that it was important the he
follow through with his duties on Mr. Young’s case. . . . Koger never returned my
call.
R. 71–4 (Guerra Aff. at 2) (Page ID #2769). By the time Guerra attempted to reach him, Koger
had missed three filing deadlines for Young’s appellant brief. On January 14, 2011, the original
due date for the brief, Koger filed a motion for a thirty-day extension, which the court granted.
R. 71–3 (1st Mot. for Extension at 1) (Page ID #2760). He filed a second motion for a thirty-day
extension on February 16, 2011, two days after the new filing deadline, which the court again
granted. R. 71–3 (2d Mot. for Extension at 1) (Page ID #2762); R. 71–3 (Order at 1) (Page ID
#2764). Koger missed the third deadline, this time taking no action to request an extension.
Upon learning that Koger had missed the third deadline, Young filed a formal complaint
regarding Koger. In this complaint, Young stated that “I’ve called Mr. Koger about 500 times
since he was appointed to represent me. Not once have I ever even spoken to Mr. Koger
regarding my brief.” R. 71–5 (Mem. of Complaint at 1) (Page ID #2771). Young requested the
court to remove and replace Koger as counsel. Id. One week later, on May 2, 2011, nearly two
months after the third deadline had lapsed, Koger filed a motion to file appellant’s brief late,
citing “counsel’s error and oversight.” R. 71–3 (Mot. to File Late at 1) (Page ID #2765). The
brief, which Koger prepared without consulting his client, failed to raise eight claims that had
been raised below.
- 25 -
Case No. 16-5075, Young v. Westbrooks
Cause for a procedural default exists where “something external to the petitioner,
something that cannot fairly be attributed to him[,] . . . ‘impeded [his] efforts to comply with the
State’s procedural rule.’” Coleman v. Thompson, 501 U.S. 722, 753 (1991). Although a
postconviction attorney’s negligence does not constitute cause, the Supreme Court has carved
out an exception in cases where an attorney’s actions go beyond ineffectiveness and amount to
client abandonment. Maples, 565 U.S. at 280–81. In articulating this difference, the Court relied
upon principles of agency law, and reasoned that whereas “the principal bears the risk of
negligent conduct on the part of his agent,” id. at 281, an attorney who abandons his client severs
the principal-agent relationship, and, as such, “a litigant cannot be held constructively
responsible for the conduct of an attorney who is not operating as his agent in any meaningful
sense of that word,” id. at 282 (quoting Holland v. Florida, 560 U.S. 631, 659 (Alito, J.,
concurring in part and concurring in judgment)).
Young has clearly alleged “extraordinary circumstances beyond his control.” Id. In
Maples, the Supreme Court suggested that abandonment can be “evidenced by counsel’s near-
total failure to communicate with petitioner or to respond to petitioner’s many inquiries and
requests over a period of several years.” Id. (citations omitted). Here, Young alleges that Koger
failed to speak with him even once despite hundreds of calls from Young. He also alleges that
Koger failed to respond to numerous other calls from two attorneys previously assigned to the
case, and never returned a phone call to the trial court’s clerk, who alerted Koger that he had
missed the deadline to file the appellate brief.
The majority contends that while Koger’s failure to communicate amounts to
ineffectiveness, that alone is insufficient to establish a claim of abandonment. To be sure, a
failure effectively to communicate may amount to simple negligence in certain cases. But the
majority overlooks two things. First, the failure to communicate here went far beyond the
- 26 -
Case No. 16-5075, Young v. Westbrooks
“garden variety” negligence that typically gives rise to an ineffective assistance claim. See
Holland, 560 U.S. at 651–52. Here, Koger’s silence was remarkable both because of Young’s
diligence in attempting to contact his lawyer and because Koger did not just ignore his client, or
even his fellow counsel, but also employees of the court. Not one party involved in this case was
given any indication that Koger was representing Young’s interest. The facts here indicate that
the conduct amounted to far more than simple negligence. The failure to communicate here, in
other words, was “extraordinary.” See id. at 652.
Second, by the majority’s own admission, Koger’s failure to communicate is not the sole
basis of Young’s abandonment claim.1 Koger also missed numerous filing deadlines and failed
to research properly the claims that he could raise. Taken together, Koger’s conduct resembles
the conduct at issue in Holland, which the Supreme Court held went beyond a “garden variety
claim of excusable neglect” and amounted to an “extraordinary” case of attorney misconduct.
560 U.S. at 651–52 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). Like
the lawyer in Holland, Koger “failed to file [Young’s appellate brief] on time despite [Young’s
hundreds of calls in which Young] repeatedly emphasized the importance of him doing so.”
Holland, 560 U.S. at 652. Koger similarly failed to respond to Young’s numerous “pleas for . . .
information” about the status of his appeal. Id. Whereas Holland’s lawyer failed to research the
proper filing date, Koger appears to have done the same, and what’s worse, failed to research the
substantive issues in Young’s appeal, despite the fact that these issues were identified in the
proceedings below and that the attorney who originally briefed them had tried to reach out to
1
The majority deals with Young’s “three problems” separately, and points out that each
claim, on its own, is insufficient to establish abandonment. Majority Op. at 10–13. As explained
below, the problems cited by Young must be viewed together to determine if Koger’s conduct
amounts to abandonment rather than mere negligence. See Holland, 560 U.S. at 652.
- 27 -
Case No. 16-5075, Young v. Westbrooks
Koger about the case.2 Id.; R. 71–2 (Bruno Decl. at 1) (Page ID #2757). As in Holland, Koger
did not attempt to make a proper filing on Young’s behalf until Young had formally complained
about Koger’s inadequate representation.3 Holland, 560 U.S. at 643 (noting that defendant’s
lawyer mailed a proposed federal habeas petition to his client the day after he responded to a
complaint before the Florida Bar Association). Finally, as detailed above, Koger “failed to
communicate with his client . . . despite various pleas” from Young, Young’s prior attorneys, and
the trial court’s clerk. Id. at 652.
The majority contends that Holland is distinguishable because Koger ultimately filed a
brief for Young. It is worth noting that Holland’s lawyer also eventually prepared a belated
filing for his client, but rather than file it directly with the court, he first asked his client to
review it. Id. at 643. If producing work-product months after a lapsed deadline was insufficient
in Holland, it is unclear why that is not also true here. In either case, I believe that the principal-
2
Contrary to the majority’s assertion, I do not argue that Koger was obligated to raise all
five claims discussed by the state court. See Majority Op. at 19 n.3. I agree that claim
abandonment alone does not amount to client abandonment. But while an attorney’s decision
not to raise certain claims may “sound more in strategy than abandonment,” the failure to
research those claims does not. Id. Coupled with further evidence of an utter failure to
communicate, a failure to conduct the research necessary for adequate representation was, in
Holland, proof of an extraordinary circumstance beyond Holland’s control. Here, viewing the
facts in their entirety, including not only the failure to raise these claims, but also the
circumstances surrounding the filing, the record indicates that Koger, one week after Young
requested his removal as counsel, attempted a last-ditch effort by filing a hastily written brief and
requesting leave to file that brief despite “counsel’s error and oversight.” R. 71–3 (Mot. to File
Late at 1) (Page ID #2765). His failure to raise claims deemed important by either the trial court,
trial counsel, or Young, while itself insufficient to constitute client abandonment, is evidence of
his failure to research the case.
3
In Holland, defendant’s lawyer drafted defendant’s habeas petition three months after
the statute of limitations had passed. Holland, 560 U.S. at 643. Here, Koger filed Young’s
appellate brief nearly four months after the original deadline and nearly two months after the
third and final extended deadline.
- 28 -
Case No. 16-5075, Young v. Westbrooks
agent relationship was severed before these belated attempts at representation, and that the
lawyers, in both cases, lacked the authority to act on behalf of their client.
“[U]nder agency principles, a client cannot be charged with the acts or omissions of an
attorney who has abandoned him.” Maples, 565 U.S. at 283. In Maples, the Supreme Court held
that the defendant had been abandoned when his two primary attorneys left their firm without
notifying their client or seeking the court’s permission to withdraw. Id. at 283–85. The Court
concluded, on the basis of agency law, that their agency relationship was severed once the
lawyers began new employment. Id. at 284–85. The Court also found that although local
Alabama counsel remained as attorney of record in the case, he “did not operat[e] as [Maples’s]
agent in any meaningful sense of that word” because he “did not even begin to represent
Maples,” and upon receiving a trial court’s order, he did not “contact [co-counsel] to ensure that
firm lawyers were taking appropriate action.” Id. at 287.
As in Maples, Young was “left without any functioning attorney of record.” Id. at 288.
Young was given no reason to believe that Koger was operating as his agent or otherwise
representing his interests. Over a period of several months, Young did not hear from, and could
not get in touch with, his new postconviction counsel. When permitted, Young made countless
phone calls from prison and reached out to others who might be able to assist him, including
former attorneys who had worked on his case. Koger did not even respond to inquiries from the
trial court’s clerk. Finally, in the face of apparent abandonment, Young filed a complaint
seeking new counsel, in order formally to sever the principal-agent relationship.
The majority contends that there was no severance of the agency relationship in this case,
because, unlike Maples’s firm lawyers, Koger did not assume new employment or otherwise
breach his duty of loyalty. But a breach of the duty of loyalty is not the only way an agent’s
authority may be terminated. Maples’s local counsel, after all, never created a conflict of interest
- 29 -
Case No. 16-5075, Young v. Westbrooks
that terminated his authority. A principal also has the power to revoke authority by “indicat[ing]
that the principal no longer consents to have the agent act for him.” Restatement (Second) of
Agency, § 119 cmt. a. And while Young did not have a right to his choice of court-appointed
counsel, “where a district court is on notice of a criminal defendant’s dissatisfaction with
counsel, the court has an affirmative duty to inquire as to the source and nature of that
dissatisfaction—regardless of whether the attorney is court-appointed or privately retained.”
Benitez v. United States, 521 F.3d 625, 634 (6th Cir. 2008). In order to remove court-appointed
counsel, a defendant must show good cause, such as by demonstrating that “the conflict between
the attorney and client was so great that it resulted in a total lack of communication preventing
an adequate defense.” Id. at 632 (quoting United States v. Iles, 906 F.2d 1122, 1130 n.8 (6th Cir.
1990)). Once Koger demonstrated abandonment, Young requested Koger be removed for cause,
citing Koger’s failure to communicate, to meet deadlines, to keep his client informed of key
developments, and to honor his client’s reasonable requests. The notice Young provided was
supported by good cause, and was therefore sufficient to sever the agency relationship.
The equitable principles underlying the cause exception to procedural default weigh
against holding liable a petitioner who has done everything in his power to advocate on his own
behalf when abandoned by his counsel. See Maples, 565 U.S. at 283; Holland, 560 U.S. at 645,
653 (holding that equitable tolling may apply where petitioner wrote numerous letters to his
attorney that went unanswered, and “also repeatedly contacted the state courts, their clerks, and
the . . . State Bar Association in an effort to have [his attorney]—the central impediment to the
pursuit of his legal remedy—removed from his case.”). I believe that Young has established
abandonment and thus has cause for procedurally defaulting on the eight claims raised at his
initial postconviction hearing.
- 30 -
Case No. 16-5075, Young v. Westbrooks
The majority also argues that Young failed to show prejudice because “Young was solely
concerned with making sure that an appellate brief was filed on his behalf,” which the state court
ultimately allowed. Majority Op. at 18. The record does not support this assertion. Although
declarations from Young’s former counsel state that Young was concerned with whether a brief
had been filed, nothing in the record indicates that this was Young’s only concern. Young’s
complaint to the court indicated that he was concerned that “not once have I ever even spoken to
Mr. Koger regarding my brief,” which could indicate a concern not just with the filing, but with
the content of the brief. R. 71–5 (Mem. of Complaint at 1) (Page ID #2771).
Finally, the majority asserts that the record does not support Young’s argument that the
defaulted claims were the “best and most obvious issues,” because the initial postconviction
court summarily dismissed all but five of Young’s twenty claims in a single paragraph. Majority
Op. at 18–19. The majority argues that if the postconviction court deemed it unnecessary to
address the remaining claims in detail, Koger could have made a strategic decision to raise only
those issues that were likely to succeed. Id. at 18–19. Even accepting this flawed logic, the
majority’s conclusion does not follow. Of the five issues the initial postconvinction court
decided to brief in detail, Koger raised only two. The majority cannot explain why the remaining
three issues—juror misconduct, a sleeping juror, and failure to move for mistrial with
prejudice—were so lacking in merit to justify Koger’s omission, or, conversely, why two issues
not thoroughly briefed by the lower court were more worthy of attention on appeal. Moreover,
there is evidence to support that these omitted claims were meritorious. For example, although
the state court held that Young failed to establish that a sleeping juror “failed to follow some
important or essential part of the proceeding,” R. 34–27 (Initial State Postconviction Order at 4)
(Page ID #2437), the trial court’s clerk stated in her declaration that “[e]veryone in Judge
Fishburn’s court, including myself, heard about one of the jurors sleeping throughout the whole
- 31 -
Case No. 16-5075, Young v. Westbrooks
trial,” R. 71–4 (Guerra Aff. at 1) (Page ID #2768) (emphasis added).4 The record therefore does
not support the majority’s assertion that Koger’s brief was the product of sound trial strategy.
Young has demonstrated that he was abandoned by counsel and that he was prejudiced by
“extraordinary circumstances beyond his control.” Maples, 565 U.S. at 282 (citations omitted).
Under the Supreme Court’s holding in Maples, this abandonment constitutes proper cause for
Young’s default. The majority viewing this matter differently, I respectfully dissent.
4
The majority notes that our review of the state court’s rejection of this evidence would
be subject to AEDPA deference. See Majority Op. at 19 n.3. That is wholly irrelevant here—we
are not reviewing the state court’s rejection of this evidence, we are assessing Young’s claim of
abandonment. Although the state court rejected Young’s sleeping juror claim on the merits,
there is nothing to support the majority’s assertion that Koger’s decision to omit that claim on
appeal was the result of strategic decision-making.
- 32 -
| {
"pile_set_name": "FreeLaw"
} |
Case: 15-15805 Date Filed: 12/21/2017 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15805
________________________
D.C. Docket No. 1:15-cr-20411-DMM-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELINA GONZALEZ,
Defendant - Appellant.
__________________________
No. 15-15806
__________________________
D.C. Docket No. 1:15-cr-20411-DMM-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ODALYS DE CARMEN BORREGO,
Case: 15-15805 Date Filed: 12/21/2017 Page: 2 of 12
Defendant – Appellant.
__________________________
No. 15-15807
__________________________
D.C. Docket No. 1:15-cr-20411-DMM-9
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSLAY BORREGO ALARCON,
Defendant – Appellant.
__________________________
No. 15-15808
__________________________
D.C. Docket No. 1:15-cr-20411-DMM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIA E. ECHARRI,
Defendant – Appellant.
2
Case: 15-15805 Date Filed: 12/21/2017 Page: 3 of 12
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(December 21, 2017)
Before HULL and DUBINA, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
Appellants, Angelina Gonzalez (“Gonzalez”), Maria E. Echarri (“Echarri”),
Odalys De Carmen Borrego (“O. Borrego”), Oslay Borrego Alarcon (“Borrego
Alarcon”), and eight other individuals were charged by a federal grand jury in the
United States District Court for the Southern District of Florida in a 30-count
superseding indictment with conspiracy to commit health care and wire fraud, in
violation of 18 U.S.C. § 1349 (Count 1) and related substantive charges.
Subsequently, the four defendants/appellants entered guilty pleas and submitted
written factual proffers regarding their involvement in the offenses.
I. BACKGROUND
This is a huge Medicare fraud case. After uncovering that a group of
pharmacies had all purported to have repeatedly filled the same drug prescriptions
for the same exact pool of Medicare beneficiaries, the Department of Health and
*
Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
3
Case: 15-15805 Date Filed: 12/21/2017 Page: 4 of 12
Human Services (“DHHS”) began an investigation of the pharmacies. As a result
of the investigation, the DHHS learned that all of the defendants involved in this
appeal, as well as Daniel Suarez (“Suarez”), Borrego Alarcon’s 23-year-old son,
owned and managed a number of pharmacies that they used to engage in a
conspiracy whose object was to obtain payments fraudulently from Medicare and
Medicare Program Providers for prescription drugs that the pharmacies had not
purchased or dispensed. From their fraud, Suarez and the defendants received
reimbursements in the amount of $21,000,000 from Medicare and Medicare drug
plans.
As part of the conspiracy, the defendants paid patient recruiters to locate and
pay Medicare beneficiaries for the use of their beneficiary numbers. The
conspirators then used the numbers on reimbursement claims they submitted to
Medicare through all of the pharmacies. The claims falsely and fraudulently
represented that various healthcare benefits, primarily prescription drugs, were
medically necessary, prescribed by a doctor, and had been provided to Medicare
beneficiaries by the pharmacies. Law enforcement officers determined that the
proceeds of the fraud were distributed to various bank accounts for the personal
benefit and use of each of the defendants. After his arrest, Suarez informed law
4
Case: 15-15805 Date Filed: 12/21/2017 Page: 5 of 12
enforcement officers that he and the defendants equally managed and profited from
the pharmacies involved in Count 1 of the offense.
After the defendants entered guilty pleas, the United States Probation Office
prepared a presentence investigation report (“PSI”) for each of the defendants. All
of the PSIs contained the same calculation of the defendants’ offense levels under
the United States Sentencing Guidelines (“USSG”). Each PSI calculation set the
defendants’ base offense level at seven, pursuant to USSG §§ 2B1.1 and
2X1.1(c)(1); each PSI added twenty levels, pursuant to USSG § 2B1.1(b)(1)(K),
because the defendants were held accountable for a loss greater than $9,500,000
but less than $25,000,000; each PSI added three levels, pursuant to USSG
§2B1.1(b)(7), because the loss involved a government health care program and was
greater than $7,000,000; each PSI added two levels, pursuant to USSG
§ 2B1.1(b)(10)(C), because the offense involved sophisticated means; and each
PSI added three levels, pursuant to USSG § 3B1.1(b), based on the defendants’
roles as managers or supervisors of a criminal activity that involved five or more
participants or was otherwise extensive. The PSI also recommended a three-level
downward adjustment for each of the defendants, pursuant to USSG §§ 3E1.1(a)
and (b), for their timely acceptance of responsibility for the offenses.
5
Case: 15-15805 Date Filed: 12/21/2017 Page: 6 of 12
After adjustments, each defendant’s total offense level was 32. None of the
defendants had any criminal history points and, as a result, the PSI assigned each
defendant a criminal history category of I. Based upon a criminal history category
of I and a total offense level of 32, each defendant’s guideline imprisonment range
was 121 to 151 months. The PSI further reported that the statutory maximum
sentence for the offense was 20 years’ imprisonment, pursuant to 18 U.S.C. §
1343. Each of the defendants submitted a sentencing memorandum and a motion
for a downward variance.
The government filed a written response arguing that the defendants should
be held responsible for the entire loss from the fraud because bank records,
interviews of co-conspirators, and the defendants themselves confirmed that they
had worked together as a family to own and operate a well-organized fraudulent
enterprise using the eight pharmacies to effectuate the fraud. The government
asserted that the defendants’ offense levels were properly calculated, but did
concede that, based upon the district court’s ruling during Suarez’s sentencing
hearing, the two-level sophisticated means enhancement should not be applied.
After sustaining the defendants’ objections to the two-level sophisticated
means enhancement, the district court found that each of the defendant’s total
offense level was 30. Thus, an offense level of 30 and a criminal history category
6
Case: 15-15805 Date Filed: 12/21/2017 Page: 7 of 12
of I resulted in a recommended guideline range of imprisonment of 97 to 121
months’ imprisonment. Following the parties’ arguments, the district court
imposed a sentence of 108 months’ imprisonment for each defendant. Defendants
then perfected this appeal.
II. ISSUES
(1) Whether the district court clearly erred when it found each
defendant was a manager or supervisor of the criminal activity.
(2) Whether the district court clearly erred in determining the
amount of the loss and amount of restitution attributable to
each of the defendants.
(3) Whether the district court abused its discretion by imposing
the same 108-month sentence on each of the defendants.
III. STANDARDS OF REVIEW
We review for clear error the district court’s determination of the facts
regarding a defendant’s role in the offense. United States v. Martinez, 584 F.3d
1022, 1025 (11th Cir. 2009).
We also review the district court’s determination of the amount of the loss
attributable to a defendant for clear error. United States v. Barrington, 648 F.3d
1178, 1197 (11th Cir. 2011).
7
Case: 15-15805 Date Filed: 12/21/2017 Page: 8 of 12
In addition, we review for clear error the factual findings underlying a
restitution order. United States v. Brown, 665 F.3d 1239, 1252 (11th Cir. 2011).
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013).
IV. DISCUSSION
A. Managerial Roles
In our view, the district court properly enhanced the defendants’ offense
levels, pursuant to USSG § 3B1.1(b), for their managerial roles in the Medicare
fraud conspiracy. First of all, the standard of review cuts against the defendants’
arguments. It is a monumental hurdle to establish clear error. Indeed, in their
factual proffers, each defendant admitted that he/she owned and operated
pharmacies used to commit the fraud and that he/she submitted claims and
received payments for prescription drugs which he/she knew that the pharmacies
neither possessed nor dispensed.
The government presented evidence that these pharmacies had little or no
legitimate business; that the fraud involved more than 30 participants including
patient recruiters and Medicare beneficiaries, whom the defendants paid in order to
use their beneficiary numbers to file false Medicare claims; that the defendants
were signatories on the various bank accounts used to receive and conceal the
8
Case: 15-15805 Date Filed: 12/21/2017 Page: 9 of 12
fraud proceeds; and that their co-conspirators stated that they had acted as a
“family” to manage the fraud activities. The record demonstrates that the
defendants’ claims regarding each one’s lack of leadership responsibilities are
contrary to their own prior admissions and the evidence presented at the sentencing
hearing. Accordingly, we affirm the three-level enhancement for the defendants’
roles as managers or supervisors in the conspiracy.
B. Amount of Loss and Restitution
It is also our view that the district court was correct in attributing the amount
of loss and calculating the amount of restitution owed by each defendant. A
defendant’s specific offense characteristics, such as the amount of the loss
attributable to him under USSG § 2B1.1, are determined based upon all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity. See USSG § 1B1.3(a)(1)(B).
In the present case, in determining the defendants’ offense level at
sentencing, the district court calculated the amount of the loss caused by the
offenses with respect to each of the defendants. See USSG § 2B1.1. The district
court need only make a reasonable estimate of the loss amount based upon a
preponderance of the evidence. See 18 U.S.C. § 3664(e) (providing that the
government prove the loss amount by a preponderance of the evidence); see also
9
Case: 15-15805 Date Filed: 12/21/2017 Page: 10 of 12
United States v. Martin, 803 F.3d 581, 595 (11th Cir. 2015) (citing to United States
v. Futrell, 209 F.3d 1286, 1290 (11th Cir. 2000)). Here, the district court made
individualized findings that supported its determination that each of the defendants
was responsible for between $9.5 million and $25 million in losses by first
determining the scope of each defendant’s criminal activity and then calculating
the foreseeable loss. The court’s conservative and methodical analysis was
appropriate and, as a result, the 20-level enhancement of the defendants’ offense
levels under USSG § 2B1.1(b)(1)(K) was correct. We therefore affirm the district
court’s calculation of the loss amount.
The district court also made findings to support its imposition of restitution
under 18 U.S.C. § 3664, which states that “the court shall order restitution to each
victim in the full amount of each victim’s losses as determined by the court[.]” 18
U.S.C. § 3664(f)(1)(A). In allotting restitution, § 3664(h) states that “[i]f the court
finds that more than 1 defendant has contributed to the loss of a victim, the court
may make each defendant liable for payment of the full amount of restitution or
may apportion liability among the defendants to reflect the level of contribution to
the victim’s loss and economic circumstances of each defendant.” 18 U.S.C. §
3664(h). Because we discern no clear error in the district court’s restitution
determination, we affirm the district court’s order.
10
Case: 15-15805 Date Filed: 12/21/2017 Page: 11 of 12
C. Reasonableness of Sentences
Finally, the defendants argue that the district court’s decision to impose
identical sentences on each of them was unreasonable and that the district court
should have given more consideration to their individual circumstances and
individual roles in the conspiracy. We disagree. We review the substantive
reasonableness of the sentence for abuse of discretion, based upon the totality of
the circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).
In announcing the defendants’ sentences, the district court stated that it had
considered the § 3553(a) factors and discussed several of those factors on the
record. The court acknowledged that the consequences of the sentences on the
defendants’ families would be severe because the fraud was perpetrated as a family
affair, involving many members of the same family. The district court stated,
however, that the fraud involved a tremendous loss in that the defendants
defrauded the Medicare program of more than $20,000,000 within a period of a
few years.
Finally, the district court acknowledged that although the 108-months’
sentence was harsh, the differences in the level of participation in the offense by
the individual members was minimal, and each of the defendants received a
significant amount of the known fraud proceeds. Much of that money is still
11
Case: 15-15805 Date Filed: 12/21/2017 Page: 12 of 12
unaccounted for, and the amount was substantial with respect to each of the
defendants.
In conclusion, we hold that the sentences were reasonable. For the
foregoing reasons, we affirm the defendants’ sentences.
AFFIRMED.
12
| {
"pile_set_name": "FreeLaw"
} |
535 U.S. 1111
IN RE BERRY.
No. 01-10019.
Supreme Court of the United States.
June 3, 2002.
1
Petition for writ of habeas corpus denied.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as State v. Nichols, 2016-Ohio-7554.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0053
- vs - :
FELISHA O. NICHOLS, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2015 CR 00491.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Felisha O. Nichols, was charged in the Warren Municipal Court
with one count of Receiving Stolen Property, a fifth-degree felony, on June 25, 2015.
After the matter was bound over to the Trumbull County Court of Common Pleas,
appellant was indicted by the Trumbull County Grand Jury on July 21, 2015, on two
counts: (1) Grand Theft, a fourth-degree felony, in violation of R.C. 2913.02(A)(3); and
(2) Passing Bad Checks, a fourth-degree felony, in violation of R.C. 2913.11(B).
Following appellant’s guilty plea to Count One, the trial court sentenced appellant to six
months in prison on May 10, 2016.
{¶2} Appellant timely appeals the May 10, 2016 sentencing entry, raising one
assignment of error:
{¶3} “The trial court erred and abused its discretion by denying the appellant’s
motion for a reasonable continuance of appellant’s sentencing hearing.”
{¶4} Appellant asserts the trial court abused its discretion in denying her oral
motion to continue the sentencing hearing until such time that appellant could undergo
an interview for purposes of a presentence investigation (“PSI”) report.
{¶5} “The decision to grant or deny a continuance is within the sound discretion
of the trial court. An appellate court will not reverse a trial court’s denial of a
continuance absent a finding that the trial court abused its discretion.” State v. Green,
11th Dist. Lake No. 2011-L-037, 2012-Ohio-2355, ¶71 (citation omitted).
In evaluating a motion for a continuance, a court should note, inter
alia: the length of the delay requested; whether other continuances
have been requested and received; the inconvenience to litigants,
witnesses, opposing counsel and the court; whether the requested
delay is for legitimate reasons or whether it is dilatory, purposeful,
or contrived; whether the defendant contributed to the circumstance
which gives rise to the request for a continuance; and other
relevant factors, depending on the unique facts of each case.
State v. Unger, 67 Ohio St.2d 65, 67-68 (1981) (citation omitted).
{¶6} On March 14, 2016, appellant entered into a plea agreement with
appellee, the state of Ohio. In exchange for appellant pleading guilty to Count One,
Grand Theft, the state entered a nolle prosequi on Count Two, Passing Bad Checks.
This plea agreement advised appellant that her potential prison term ranged from six to
2
eighteen months. The trial court accepted the plea agreement and ordered a PSI be
conducted prior to sentencing.
{¶7} An appointment for the PSI was scheduled for March 21, 2016, at 9:00
a.m.; appellant did not appear and called that same day to reschedule. The PSI
appointment was rescheduled for March 25, 2016, at 9:00 a.m.; appellant again did not
appear and called that same day to reschedule. The interview was once again
rescheduled for April 1, 2016, at 1:00 p.m.; appellant did not appear. The probation
officer submitted to the trial court the portion of the PSI that could be completed without
appellant’s direct participation.
{¶8} On May 9, 2016, the sentencing hearing was held. At the hearing,
defense counsel requested a continuance due to the fact that appellant had not yet
undergone her PSI interview. Counsel stated appellant had communicated to him via
email that she was having difficulty arranging transportation, from Campbell to Warren,
for the scheduled appointments. Counsel suggested that appellant could go to the
Probation Department that day and again schedule a date for the PSI interview.
{¶9} The trial court stressed that appellant had already missed three
appointments without a medical issue or any other type of documentation. The court
read into the record, from the partial PSI report, that the probation officer had “stressed
the importance of this interview” to appellant, who replied that “her life situation was
more important than the presentence investigation interview.” The court further stated
that many people in her situation use public transportation, pay for a ride, or ask a friend
for help; appellant had utilized none of these options.
3
{¶10} The trial court denied appellant’s oral motion to delay the imposition of
sentence.
{¶11} The court then outlined the available portion of appellant’s criminal record:
a 1999 theft conviction, for which she received two years probation; a theft conviction in
the state of Georgia, for which she received twelve months probation; a 2014 misuse of
credit cards conviction, for which she also received probation.
{¶12} Attempting to establish to the court that appellant was amenable to
probation, defense counsel elicited from appellant that she was currently attending
culinary school, which assists students with job placement upon completion of the
program. Appellant assured the court that she would show up for probation
appointments.
{¶13} The state presented the victim of appellant’s current conviction, Dr. Diana
Karnavas-Ashdown, who gave a statement on behalf of Advanced Foot & Ankle Center,
Inc. Appellant was apparently employed by the victim at the time appellant stole a
company check and issued it to her son in the amount of $10,183.00. Dr. Karnavas-
Ashdown further stated she was interested in seeing appellant incarcerated, as there
did not appear to be any way appellant could pay the money back.
{¶14} The trial court stated it was imposing a prison term due to appellant’s prior
record, the amount of money stolen from the victim in this case, and her failure to
appear for the scheduled PSI interviews. The court told appellant: “Three different
times appointments were made for you that you did not go to which, to me, is the first
sign of somebody not interested in the probation process.” The court then sentenced
appellant to six months in prison, the minimum sentence available for her conviction of
4
Grand Theft. She was also ordered to pay courts costs and restitution in the amount of
$10,183.00.
{¶15} These facts demonstrate that a continuance of the sentencing hearing
was not warranted. Although appellant had never requested or received any previous
sentencing continuances, the sole reason she now requested a continuance was to
undergo a PSI interview, which she had, with apparent indifference, already
rescheduled three times. Additionally, appellant did not request a continuance for a
specific length of time but, instead, until such time as she could undergo her PSI
interview.
{¶16} By the time she appeared for the sentencing hearing, appellant had
already inconvenienced the judicial system. Further inconvenience would have been
inflicted upon the schedules of the trial court, the prosecutor, and the victim who
appeared in court that day. The requested delay was based on dilatory, not legitimate,
reasons; and appellant was clearly the cause of the circumstance which gave rise to the
request. The totality of the circumstances indicates the trial court’s denial of the oral
request was not an abuse of discretion.
{¶17} Appellant’s sole assignment of error is without merit.
{¶18} The judgment of the Trumbull County Court of Common Pleas, imposing a
six-month sentence on appellant after denying her oral motion to continue, is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
DIANE V. GRENDELL, J.,
concur.
5
| {
"pile_set_name": "FreeLaw"
} |
Filed 8/26/16 In re J.E. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.E., a Person Coming Under the B267367
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK95545)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
F.E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Frank J.
Menetrez, Judge. Affirmed with directions.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and
Respondent.
——————————
On appeal, F.E. (Mother) advances three arguments: First, she contends that the
juvenile dependency court (dependency court) erred in sustaining a petition made
pursuant to Welfare and Institutions Code section 3421 concerning her eldest child, J.E.
(Child). Specifically, Mother contends that the action by the dependency court was void
because at the time the Child was under the dual jurisdiction of the dependency court and
the juvenile delinquency court (delinquency court). Second, Mother argues that the
dependency court erred when it terminated jurisdiction over the Child because conditions
that initially warranted jurisdiction still existed. Third, Mother claims that even if
termination was proper, the dependency court’s termination order failed to specify the
frequency and duration of her monitored visits. Although the Los Angeles Department of
Children and Family Services (DCFS) contests Mother’s other arguments, it concedes
that the failure to provide greater specificity with regard to visitation was improper and
urges reversal so that the dependency court may make more specific provisions for
Mother’s supervised visits. While we hold that Mother’s first two arguments lack merit,
we agree with Mother and DCFS that the visitation order lacked the necessary specificity.
Accordingly, we affirm but direct the dependency court to provide the missing specificity
in the termination order.
BACKGROUND
I. The dependency court acquires jurisdiction over the Child
The Child, his mother and his younger siblings (Sister and Brother) came to
DCFS’s attention in September 2012 due to reports that Mother had physically abused
the Child (at the time, age 10) by hitting him with her hands and a belt.2 In an interview
1 Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 InDecember 2011, DCFS received a law enforcement referral regarding
allegations against the Child’s father (Father) for domestic abuse in the home and
physical abuse of the Child. No charges were brought against Father and the family
agreed to a Voluntary Family Maintenance (VFM) case. In September 2012, Mother had
“fully complied” with the recommended VFM case plan and programs. In September
2012, Father lived in Florida and had been doing so since February 2012.
2
with a DCFS social worker, Mother admitted to hitting the Child but explained that she
did so because she suspected the Child of sexually abusing his Brother (at the time, age
5)—Mother had discovered the Child touching his erect penis to Brother’s buttocks while
in the shower. Before this shower incident, Brother had been complaining for several
months that his buttocks were hurting and Mother had assumed during that time that
Brother’s discomfort was due to a hygiene issue.
DCFS filed an initial petition on September 18, 2012, and an amended petition on
October 24, 2012, alleging that the Child, Sister and Brother were at risk of physical
harm due to prior incidents of domestic abuse, Mother’s physical abuse of the Child, and
Father’s physical abuse of the Child and his siblings (the section 300 petition). On
November 5, 2012, the dependency court sustained the section 300 petition as amended
and declared the Child and his siblings dependent children; the court removed the
children from their parents’ custody, and ordered family reunification services and
supervised visitation.
In May 2013, the dependency court ordered Sister and Brother returned to
Mother’s custody, but under supervision of DCFS. Although the court noted Mother’s
progress toward reunification and affirmed that the “goal for the children is to terminate
jurisdiction,” the court found that continued jurisdiction over all of the children was
“necessary because conditions exist which justify jurisdiction” under sections 300 and
364, subdivision (c).
In August 2013, the dependency court ordered the Child returned to Mother’s
custody. However, the dependency court did not terminate jurisdiction over the Child.
Instead, it ordered that the Child remain “a dependent child of the court” and that his
return to Mother’s custody was under the “supervision of DCFS.” Again, the court stated
that continued jurisdiction was “necessary because conditions exist which justify
jurisdiction” under sections 300 and 364, subdivision (c).
II. The delinquency court acquires concurrent jurisdiction over the Child
On Monday, December 16, 2013, Mother called DCFS, stating that on Saturday,
December 14, Sister (at the time, age 8) had told her that the Child had rubbed his penis
3
on Sister’s vagina while Mother was in the restroom and a second time when the family
was at the playground. The police subsequently arrested the Child (at the time, age 12)
and housed him at juvenile hall, while Sister and Brother remained in Mother’s custody.
On December 18, 2013, the People filed in delinquency court a section 602
petition (the 602 petition) against the Child, alleging two felony counts of lewd acts
against a child, one count for his acts against Sister and one count for his acts against
Brother. On February 27, 2014, the Child admitted the allegations of the 602 petition.
On March 4, 2014, the delinquency court declared the Child a delinquent child
under section 602 and released him to the custody of both DCFS and the probation
department. DCFS ultimately reported that the Child was “under dual supervision with
[DCFS] as primary and Juvenile Probation as secondary . . . .” 3
III. The delinquency court terminates jurisdiction over the Child
On July 21, 2015, more than a year and a half after acquiring jurisdiction over the
Child, the delinquency court, having found that the Child successfully completed
probation, terminated its jurisdiction, releasing the Child to his “Parents.”
IV. The dependency court terminates jurisdiction over the Child
At the time when the delinquency court exercised jurisdiction over the Child, the
dependency court already had jurisdiction over the Child pursuant to the section 300
petition. Moreover, the dependency court, pursuant to the section 300 petition and to a
second and subsequent petition, continued to exercise jurisdiction over the Child after the
delinquency court relinquished its jurisdiction.
On January 17, 2014, as a result of the sexual abuse allegations against the Child,
DCFS filed a second petition regarding the family pursuant to section 342 (the 342
3 Initially,
on January 8, 2014, the probation department’s multidisplinary team
recommended that DCFS should be the lead agency under section 241.1. However,
shortly before the Child admitted to the section 602 petition, the multidisciplinary team
changed its lead agency recommendation to the probation department. At some point in
the spring of 2014, the lead agency role was passed back to DCFS and that is where it
remained.
4
petition), alleging Mother failed to adequately supervise the children resulting in the
Child’s sexual abuse of Sister.4
On July 11, 2014, following a contested hearing, the dependency court sustained
the 342 petition, finding by clear and convincing evidence that substantial danger existed
to the physical health of the minors. The dependency court ordered the Child removed
from Mother’s custody, while ordering that Sister and Brother remain in her custody.
The July 11 order, as with prior minute orders issued after the filing of the 342 petition,
indicated that the hearing was held pursuant to both the section 300 petition and the
section 342 petition. There is no indication in the record before us that Mother ever
objected to or sought reconsideration of the July 11 order or filed a notice of appeal
regarding that order.
On January 9, 2015, the dependency court, consistent with the recommendations
of DCFS and the terms of the Child’s probation, ordered (a) that jurisdiction be
terminated with respect to Sister and Brother and (b) that jurisdiction be retained over the
Child and that the Child be placed in Father’s custody.5
In July 2015, DCFS reported that the Child had a positive relationship with Father
and a healthy relationship with his peers and friends, and while the Child’s grades were
poor he was to receive tutoring once the new school year began. DCFS also reported that
Father was participating in domestic violence counseling and individual counseling, and
had completed parenting classes. Accordingly, DCFS recommended that the parents
4 Section 342 is a mechanism for supplementing an original section 300 petition;
in pertinent part, it provides as follows: “In any case in which a minor has been found to
be a person described by Section 300 and the petitioner alleges new facts or
circumstances, other than those under which the original petition was sustained, sufficient
to state that the minor is a person described in Section 300, the petitioner shall file a
subsequent petition. This section does not apply if the jurisdiction of the juvenile court
has been terminated prior to the new allegations.”
5 In March 2014, Father returned to California from Florida in order to safeguard
his children and reunify with the Child. In advance of the January 8, 2015 hearing,
DCFS reported that the Child wished to be placed in Father’s custody and that he would
rather be placed in foster care or returned to juvenile hall than live with Mother.
5
share legal custody of the Child, Father be granted primary physical custody of the Child
with Mother having monitored visits, and that the dependency court terminate jurisdiction
over the Child and the family. DCFS did not make any recommendations as to the
frequency or type of monitored visits Mother was to have with the Child. In response to
the DCFS’s recommendations, Mother requested and the dependency court granted a
contested section 364 review hearing so that she could advocate for joint physical
custody of the Child.
The dependency court conducted the contested section 364 review hearing on
August 21, 2015. After hearing argument from counsel for Mother, Father, the Child,
and DCFS, the dependency court stated it was going to adopt DCFS’s recommendations
and that the conditions that justified its initial assumption of jurisdiction no longer
existed. The court stayed its order terminating jurisdiction until it received a family law
order granting father sole physical custody of the child, the parents’ joint legal custody,
and monitored visitation for mother. On August 26, 2015, the dependency court received
the family law order and terminated jurisdiction. However, the court’s custody order
indicates only that mother’s visits with the Child are to be supervised; the order, in other
words, does not provide any direction with regard to the frequency and duration of her
monitored visits.
On August 21, 2015, Mother filed a notice of appeal indicating that the appeal was
limited to “all findings and orders made on [August 21, 2015].”
DISCUSSION
I. The dependency court properly sustained the section 342 petition
Mother contends that the decision by the dependency court on July 11, 2014 to
sustain the section 342 petition was void, because “the delinquency court had taken
jurisdiction over [the Child] in March 2014”; as a result, the dependency court’s action,
according to Mother, “was in violation of the Legislature’s prohibition against taking
dual jurisdiction over a minor under sections 300 and 602.” Mother further argues that
because the dependency court’s July 11, 2014 order was void, it does not matter that she
did not (a) object to the order at the time it issued, (b) file a notice of appeal within 60
6
days of the order’s issuance, or (c) make any reference to that order in the notice of
appeal she filed more than a year later. Mother contends that she was prejudiced by the
dependency court’s allegedly improper action, because without its findings under section
342, the dependency court would not have had the jurisdiction to issue the custody order
granting sole physical custody of the Child to Father. Mother’s arguments are without
merit for several reasons.
First, Mother’s core contention rests on a faulty premise: she assumes that when
the delinquency court made the Child a ward of the state in winter 2014, the dependency
court somehow lacked jurisdiction over the Child. The record flatly contradicts Mother’s
assumption. The dependency court acquired jurisdiction over the Child in the fall of
2012—more than a year before the delinquency court—and it did not relinquish that
jurisdiction until summer 2015. When the dependency court sustained the 342 petition—
which by definition requires the existence of an operative section 300 petition—the
dependency court did not take jurisdiction anew, but merely expanded the scope of its
already existing jurisdiction.
Second, while “‘[d]ual jurisdiction is generally forbidden’” (In re W.B. (2012) 55
Cal.4th 30, 46), there is a legislatively-mandated exception. As our Supreme Court
explained, “In 2004, the Legislature created a small exception to the ban on dual
jurisdiction. Section 241.1, subdivision (e) allows a minor to be designated a ‘dual status
child’ and treated simultaneously under the court’s dependency and delinquency
jurisdiction, but only in accordance with a precise written protocol. The statute requires
that the protocol be developed jointly by the county’s probation department and child
welfare agency and signed by the heads of these entities as well as the presiding judge of
the juvenile court. (§ 241.1, subd. (e).) To avoid duplication of services, county
protocols must adopt either an ‘on-hold’ system, in which dependency jurisdiction is
suspended while the child is a ward of the delinquency court, or a ‘lead court/lead
agency’ system, in which the probation department and social services department decide
which agency will take the lead in all case-management and court-related matters.
(§ 241.1, subd. (e)(5).)” (In re W.B., at pp. 46–47.) Here, as the record makes clear,
7
dependency jurisdiction was not “suspended” or otherwise put “on hold” in the winter
2014. Rather, the jurisdiction of the dependency court continued unabated into summer
2015.
Third, Mother did not suffer any prejudice when the court sustained the section
342 petition. The dependency court’s findings under section 300 predated the
delinquency court’s findings under section 602 by more than a year. Moreover, there is
nothing in the record to suggest that had the dependency court not sustained the section
342 petition it would have terminated its jurisdiction before the delinquency court
terminated its jurisdiction. From a public policy perspective, it would make little sense
for a dependency court to terminate its jurisdiction over a “dual status” minor (a minor
victimized by parental abuse or neglect) before the delinquency court terminated its
jurisdiction—such action by a dependency court would be tantamount to abandoning a
dependent child before determining that it was safe for him or her to return home after his
or her tenure as a ward ended. Indeed, section 241.1 anticipates continued dependency
court supervision after a child’s delinquency case closes. Section 241.1,
subdivision (e)(2) requires “joint recommendations” from “the probation department and
[DCFS]” in order to “ensure a seamless transition from wardship to dependency
jurisdiction, as appropriate, so that services to the child are not disrupted upon
termination of the wardship.” (§ 241.1, subd. (e)(2).)
Finally, Mother sat on her rights with regard to her arguments about the section
342 petition. “Challenges to void orders, as distinguished from voidable orders, can be
made at any time. A judgment or order is void when there is an absence of fundamental
jurisdiction. However, an act in excess of jurisdiction simply renders an order of
judgment voidable. ‘Lack of jurisdiction in its most fundamental or strict sense means an
entire absence of . . . authority over the subject matter or the parties. [Citation.]’
[Citation.] In contrast, a court acts in excess of jurisdiction in the broader sense ‘where,
though the court has jurisdiction over the subject matter and the parties in the
fundamental sense, it has no “jurisdiction” (or power) to act except in a particular
manner, or to give certain kinds of relief, or to act without the occurrence of certain
8
procedural prerequisites.’ [Citation.] ‘Action “in excess of jurisdiction” by a court that
has jurisdiction in the “fundamental sense” . . . is not void, but only voidable.’ [Citation.]
A claim that does not concern the trial court’s fundamental subject matter jurisdiction is
waived if not timely asserted.” (In re Adoption of Myah M. (2011) 201 Cal.App.4th
1518, 1531.)
As noted above, the section 342 petition was, by its very nature, a supplement to
the preexisting section 300 petition—in other words, any challenge to the order
sustaining the section 342 petition could not have been a challenge to the dependency
court’s fundamental jurisdiction; a challenge limited to just the section 342 order could
only be a challenge to a voidable order. As a result, any appellate challenge to the order
sustaining the section 342 petition would need to be made within 60 days of the minute
order (Cal. Rules of Court, rule 8.104(a)(1)), not more than 365 days later, as occurred
here.
“[T]he general rule in juvenile dependency cases is that all orders (except for an
order setting a section 366.26 hearing), starting chronologically with the dispositional
order, are appealable without limitation.” (In re Gabriel G. (2005) 134 Cal.App.4th
1428, 1435, first italics added; see In re T.W. (2011) 197 Cal.App.4th 723, 729 [“[t]he
first appealable order in a dependency case is the dispositional order”].) However, “‘an
unappealed disposition or postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.’” (In re T.G. (2015) 242
Cal.App.4th 976, 984.) This is so because permitting a parent “to raise issues which go
to the validity of a final earlier appealable order would directly undermine [the] dominant
concerns of finality and reasonable expedition” underlying all juvenile dependency
proceedings. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152.) In other words, an
appeal from the most recent order entered in a dependency matter may not challenge
prior orders, for which the statutory time for filing an appeal has passed. (In re
Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) While this forfeiture rule is not
absolute, its application is inappropriate only when an error has so “fundamentally
undermined the statutory scheme” that the parent is prevented from availing himself or
9
herself of its protections. (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) Moreover,
“defects must go beyond mere errors that might have been held reversible had they been
properly and timely reviewed.” (Id. at p. 209.)
Here, without ever mentioning the July 11, 2014 order in her notice of appeal,
Mother attempts to challenge that order even though the order she expressly appealed
was the order most recently entered in the case and it was entered more than year after
the July 11, 2014 order. In short, Mother’s attempt to shoehorn a challenge to the
arguably voidable July 11, 2014 order into her appeal of the August 21, 2015 termination
order was improper, and patently so.
So, for all of the foregoing reasons, we reject Mother’s arguments regarding the
section 342 petition.
II. The dependency court properly terminated jurisdiction
Mother contends that the dependency court erred when, following the contested
section 364 review hearing, it terminated jurisdiction over the Child; this decision was in
error, argues Mother, because conditions that initially warranted jurisdiction (domestic
abuse between the parents, Mother’s physical abuse of the Child, and Father’s physical
abuse of the Child and his siblings) “still existed.” Mother’s argument is without merit.
A. Section 364 and the standard of review
The dependency court’s August 21, 2015 decision to terminate jurisdiction over
the Child and award physical custody of the Child to Father was made pursuant to section
364. Section 364, subdivision (c) currently provides: “After hearing any evidence
presented by the social worker, the parent, the guardian, or the child, the court shall
determine whether continued supervision is necessary. The court shall terminate its
jurisdiction unless the social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those conditions are likely to exist if
supervision is withdrawn. Failure of the parent or guardian to participate regularly in any
court ordered treatment program shall constitute prima facie evidence that the conditions
which justified initial assumption of jurisdiction still exist and that continued supervision
10
is necessary.” (Italics added.) Section 364, subdivision (c), in other words, establishes a
“statutory presumption in favor of terminating jurisdiction and returning the children to
the parents’ care without court supervision.” (In re Shannon M. (2013) 221 Cal.App.4th
282, 290.)
“At the section 364 review hearing, ‘the court is not concerned with reunification,
but in determining “whether the dependency should be terminated or whether further
supervision is necessary.” [Citations.]’ [Citations.] The juvenile court makes this
determination ‘based on the totality of the evidence before it.’ [Citation.] Part of the
evidence the juvenile court must consider is the supplemental report of the social worker
[citation], who must ‘make a recommendation regarding the necessity of continued
supervision.’” (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1155.)
Where, as here, the social services agency recommends termination of jurisdiction,
termination will be the “‘default result’” unless either the parent, the guardian, or the
child objects and establishes by a preponderance of the evidence that conditions
justifying retention of jurisdiction exist or are likely to exist if supervision is withdrawn.
(In re Aurora P., supra, 241 Cal.App.4th at pp. 1155–1156.)
We review findings under section 364 for substantial evidence. (In re N.S. (2002)
97 Cal.App.4th 167, 172; In re D.B. (2015) 239 Cal.App.4th 1073, 1086.) Under the
substantial evidence standard, our review “begins and ends with the determination as to
whether, on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support” the judge or jury’s factual determinations. (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873–874; Piedra v. Dugan (2004) 123
Cal.App.4th 1483, 1489.) “‘Even in cases where the evidence is undisputed or
uncontradicted, if two or more different inferences can reasonably be drawn from the
evidence this court is without power to substitute its own inferences or deductions for
those of the trier of fact . . . .’” (Jonkey v. Carignan Construction Co. (2006) 139
Cal.App.4th 20, 24, italics added.) “The term ‘substantial evidence’ means such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion; it is
11
evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009)
174 Cal.App.4th 1426, 1433.)
B. Substantial evidence supports termination of jurisdiction
Mother’s argument suffers from a number of evidentiary problems. First, at the
contested hearing, Mother did not introduce any evidence that there was continuing
domestic abuse between herself and Father; indeed, the risk of such abuse arising was
greatly reduced from when DCFS filed the section 300 petition, because Mother and
Father were living separately at the time of the contested hearing. Nor did Mother
introduce any evidence that there was a risk of Father physically abusing the Child. In
fact, DCFS in its written report recommended termination of jurisdiction, inter alia,
because the Child had a “positive relationship” with Father, who was employed on a full-
time basis with a subsidiary of Verizon and whose home was in “good condition.”
Moreover, Father, after returning to California, was participating in domestic violence
counseling, individual counseling, and parenting classes.
Second, at the hearing, the Child’s attorney stated that the Child “does really well
with his father,” that the two of them “have bonded,” and that the Child “wants to
remain” with Father. The Child’s attorney further stated that the Child did not “wish to
live with his mother,” that he did not want to have anything except monitored visits with
Mother.
Third, amplifying DCFS’s written report recommending termination and sole
physical custody with Father, counsel for DCFS stated at the hearing that “entering any
orders other than joint legal, sole physical to the father, and monitored visits for the
mother would have a negative impact on [the Child’s] well-being.”
In short, substantial evidence supported the court’s decision to order joint legal
custody, sole physical custody to Father, and monitored visitation with Mother, and to
terminate jurisdiction.
12
III. The dependency court failed to provide specifics with regard to visitation
Mother’s final claim is that the dependency court’s visitation order was improper
because the court failed to specify the frequency and minimum duration of mother’s
supervised visits. DCFS, quite correctly, concedes that this argument has merit.
A visitation order “must give some indication of how often visitation should
occur.” (In re E.T. (2013) 217 Cal.App.4th 426, 439.) Moreover, while a court “may
delegate responsibility for managing details [of visits,] such as the time, place, and
manner,” it “may not abdicate its discretion to determine whether visitation will occur to
a third party.” (Ibid.; In re T.H. (2010) 190 Cal.App.4th 1119, 1122–1123.)
By not providing any specifics, the dependency court effectively delegated to
Father the power to determine whether visitation will occur. Accordingly, we remand the
matter with directions “to specify the frequency and duration” of Mother’s visits. (In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314–1315.)
DISPOSITION
The dependency court is directed to specify the frequency and duration of
Mother’s visits. In all other respects, the August 21, 2015 order terminating jurisdiction
is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
LUI, J.
13
| {
"pile_set_name": "FreeLaw"
} |
732 F.Supp.2d 310 (2010)
In re the RESERVE FUND SECURITIES AND DERIVATIVE LITIGATION.
Securities and Exchange Commission, Plaintiff,
v.
Reserve Management Company, Inc., Resrv Partners, Inc., Bruce Bent Sr., and Bruce Bent II, Defendants, and
The Reserve Primary Fund, Relief Defendant.
Nos. 09 MD. 2011 (PGG), 09 Civ. 4346 (PGG).
United States District Court, S.D. New York.
February 24, 2010.
*312 Daniel Brett Rehns, Christopher Lometti, Cohen Milstein Sellers & Toll P.L.L.C., Jay Paul Saltzman, Pietro Michele Devolpi, Jr., Schoengold & Sporn, P.C., James Abram Harrod, III, Lester L. Levy, Sr., Wolf Popper LLP, Howard Theodore Longman, Jules Brody, Stull Stull & Brody, Gerald Harlan Silk, John Christopher Browne, Steven B. Singer, John James Rizio-Hamilton, Lauren Amy McMillen, Sean K. O'Dowd, Bernstein Litowitz Berger & Grossmann LLP, H. Adam Prussin, Stanley Merrill Grossman, Pomerantz Haudek Block Grossman & Gross LLP, Christopher J. Clark, Dewey & Leboeuf, L.L.P., Mark C. Rifkin, Paulette Suzanne Fox, Wolf Haldenstein Adler Freeman & Herz LLP, Arun Srinivas Subramanian, Susman Godfrey LLP, Evan Glassman, Michelle Lynn Levin, Steptoe & Johnson, LLP, Joseph R. Seidman, Bernstein Liebhard, LLP, Bruce Mathew Sabados, Katten Muchin Rosenman, LLP, Susan E. Brune, Brune & Richard LLP, John Halebian, Lovell Stewart Halebian Jacobson LLP, Joseph P. Garland, Lifshutz & Lifshutz, P.C., Kenneth A. Elan, Kenneth A. Elan, Esq., James A. Clarkson, Nancy A. Brown, Michael David Birnbaum, Michael Patrick Holland, Valerie Ann Szczepanik, United States Securities and Exchange Commission, New York, NY, Peter E. Borkon, Reed R. Katherine, Hagens Berman Sobol Shapiro LLP, Berkeley, CA, Gary Steven Graifman, Kantrowitz Goldhamer & Graifman, P.C., Chestnut Ridge, NY, Aaron Michael Sheanin, Christina H. C. Sharp, Daniel Charles Girard, Jonathan K. Levine, Girard Gibbs LLP, Laura Joy Edelstein, Brune & Richard LLP, San Francisco, CA, Christopher Matthew Van de Kieft, David R. Buchanan, Stephen A. Weiss, Seeger Weiss LLP, Philadelphia, PA, Norman E. Siegel, Stueve Siegel Hanson LLP, Kansas City, MO, Darren J. Robbins, David C. Walton, Lerach, Coughlin, Stoia, Geller, Rudman & Robbins, L.L.P., San Diego, CA, Samuel Howard Rudman, David Avi Rosenfeld, Mark Samuel Reich, Joseph Frank Russello, Robbins Geller Rudman & Dowd LLP, Melville, NY, Floyd G. Short, Susman Godfrey LLP, Seattle, WA, Brian D. Long, Seth David Rigrodsky, Rigrodsky & Long, P.A., Wilmington, DE, Michael Arthur Walsh, Nutter McClennen & Fish LLP, Jean-Paul Jaillet, Choate, Hall & Stewart, LLP, Harvey J. Wolkoff, Robert A. Skinner, Ropes & Gray LLP, Boston, MA, Anthony L. Paccione, Kitson Kitson & Bisesto, LLP, White Plains, NY, David J. Berger, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for Plaintiffs.
Leon Frenkel, pro se.
John Dellaportas, Fran Marcia Jacobs, Jung-Hye Yeum, Justin Joseph D'Elia, Spensyr Ann Krebsbach, Duane Morris, LLP, New York, NY, Kevin F. Berry, Matthew A. Taylor, Duane Morris LLP, Philadelphia, PA, Eric R. Breslin, Sheila Raftery Wiggins, Duane Morris, LLP, Newark, NJ, for Defendants.
Tariq Mundiya, Willkie Farr & Gallagher LLP, New York, NY, for Relief Defendant.
David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Melville, NY, for Movant.
Robert John Malionek, Latham & Watkins, LLP, William Kennedy Dodds, Dechert, LLP, David S. Douglas, Gallet Dreyer & Berkey, LLP, Antony L. Ryan, Thomas G. Rafferty, Cravath, Swaine & Moore LLP, John Aubrey Wait, Fox Rothschild, Attorneys at Law, Michael Eugene Hagenson, Michael S. Shuster, Sheron Korpus, Kasowitz, Benson, Torres & Friedman, LLP, Richard C. Pepperman, II, Sullivan and Cromwell, LLP, Eric Rieder, Bryan Cave LLP, Therese Marie *313 Doherty, Herrick, Feinstein LLP, Mark Hanchet, Mayer Brown LLP, Joseph Serino, Jr., Matthew Osborn Solum, Kirkland & Ellis LLP, Caryn Gail Schechtman, DLA Piper US LLP, David Amir Kochman, Reed Smith, Daniel Bruce Goldman, William Albert Novomisle, Paul, Hastings, Janofsky & Walker LLP, Christopher May Mason, Nixon Peabody LLP, Henry Klehm, III, Jones Day, New York, NY, Roger B. Mead, Folger Levin & Kahn LLC, Beatrice B. Nguyen, Douglas W. Sullivan, Crowell & Moring LLP, San Francisco, CA, Vincent E. Gentile, Drinker Biddle & Reath, Princetonille, NJ, David B. Mack, Sean T. Carnathan, O'Connor, Carnthan and Mack LLC, Burlington, MA, Joseph M. Pastore, III, Fox Rothschild, LLP, Stamford, CT, Frances S. Cohen, Bingham McCutchen LLP, Boston, MA, Sarah Rose Wolff, Reed Smith LLP, Chicago, IL, James Michael Lyons, Kenneth Fisher Rossman, IV, Rothberger Johnson & Lyons LLP, Denver, CO, for Claimants.
Lara A. Oravec, Ropes & Gray LLP, Boston, MA, Joshua R. Martin, Michael D. Trager, Richard L. Jacobson, Arnold & Porter, LLP, Washington, DC, Stewart David Aaron, Arnold & Porter, LLP, Arun Srinivas Subramanian, Susman Godfrey LLP, New York, NY, for Interested Parties.
Kimberlee Ann Malaska, Mark Holland, Mary Kathryn Dulka, Matthew Thomas Tulchin, Yvonne Maria Cristovici, Goodwin Procter, LLP, New York, NY, for Trustees.
MEMORANDUM OPINION AND ORDER
PAUL G. GARDEPHE, District Judge.
This action arises from the unprecedented collapse of the Reserve Primary Fund, a money market fund that, as of September 14, 2008, held debt securities issued by Lehman Bros. Holdings, Inc. ("Lehman") with a face value of $785 million, amid total assets under management of $62.5 billion. After Lehman announced on September 14 that it would file a bankruptcy petition, a run on the Fund ensued. Over the next two days, the Fund received redemption requests totaling approximately $40 billion. On September 16, 2008, the Fund announced that it had "broken the buck" i.e., its per-share net asset value ("NAV") had fallen below $0.995and officially suspended redemptions to investors.
The drop in the NAV of the Primary Fund, and the suspension of redemptions, led to the filing of numerous class and individual actions, most of which have been consolidated before this Court. See In re the Reserve Fund Securities and Derivative Litigation, 09 MD 2011.
The Securities and Exchange Commission filed this action on May 5, 2009, against Defendants Reserve Management Company, Inc. ("RMCI"), Resrv Partners, Inc., Bruce Bent Sr., and Bruce Bent II (collectively, "Defendants"). The Complaint also names the Reserve Primary Fund as Relief Defendant.[1]
Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Defendants' motion to dismiss is DENIED.
BACKGROUND
RMCI, which operates under the name "The Reserve," is a privately held corporation which provides "investment advisory services to five registered, open-end, investment companies set up as trusts, offering a total of 22 open-end investment port-folios," *314 collectively known as the Reserve Funds. (Compl. ¶ 19) Resrv Partners serves as distributor for all of the Reserve Funds. (Compl. ¶ 20) The Reserve Primary Funda money market fundis the "flagship" of the Reserve Funds. (Compl. ¶¶ 3, 31)
Bruce Bent Sr. is the Chairman of RMCI and Chairman, President, Treasurer and Trustee of the Primary Fund. (Compl. ¶ 21) Bruce Bent II, his son, is Vice Chairman and President of RMCI and the Co-Chief Executive Officer, Senior Vice President and Assistant Treasurer of the Primary Fund. (Compl. ¶¶ 22, 27)
Founded in 1971, the Primary Fund has historically invested in conservative assets selected for safety and liquidity. (Compl. ¶ 34) In 2007 and 2008, however, the Fund allegedly began to invest in higher risk commercial paper issued by financial institutions, including Lehman, for the purpose of generating a higher return. (Compl. ¶ 35)
On Monday, September 15, 2008, Lehman filed its bankruptcy petition. (Compl. ¶¶ 3, 51) Because of the Primary Fund's holdings in Lehman securities, the Fund was immediately "besieged by shareholders seeking to redeem their shares." (Compl. ¶ 3) At 10:10 a.m. on September 15, State Street Bank and Trust Company, the Primary Fund's custodial bankhaving processed $10 billion in redemptions stopped funding redemption requests and suspended the Fund's overdraft privileges. (Compl. ¶ 61) On September 16, 2008, RMCI issued a press release announcing that the Fund had reduced its valuation of its Lehman holdings to zero as of 4:00 p.m. on September 16, 2008, which caused the Primary Fund's NAV to drop to $0.97 per share. (Compl. ¶ 121) The Primary Fund had thus "broken the buck," a "catastrophic development for a money market fund and its shareholders."[2]See Compl. ¶ 37. On September 29, 2008, RMCI "disclosed that the Primary Fund's Board of Trustees had voted to liquidate the Fund and distribute its assets to shareholders." (Compl. ¶ 123)
The Commission alleges that while the Fund was collapsing on September 15 and 16, 2008, the Defendants "engaged in a systematic campaign to deceive the investing public into believing that the Primary Fund . . . was safe and secure despite its substantial Lehman holdings." (Compl. ¶ 1) Defendants are alleged to have "violated the antifraud provisions of the federal securities laws" by engaging in a "campaign of misinformation" designed to "persuade investors to refrain from redeeming shares, and to induce new purchases of shares" in the Primary Fund. (Compl. ¶¶ 4-6)
The Primary Fund's Board of Trustees began meeting to address the effects of the Lehman bankruptcy on the Fund at 9:30 a.m. on September 15, 2008. At that meeting, Defendants Bent Sr. and Bent II, along with RMCI's chief investment officer ("CIO"), reported that there was "no valid market for Lehman paper," but that bids were in the range of 45 to 80 cents on the dollar. (Compl. ¶ 57) These statements were made despite "market data available to RMCI on the morning of September 15, which was shared with the Bents but not the Board," suggesting that "Lehman debt would not trade any higher than between $0.30 and $0.40" on the dollar. Id. The Complaint alleges that Bent Sr. also recommended *315 that the Board value the Lehman holdings at par, despite conceding "that he would not authorize RMCI to purchase the Lehman debt at par value." (Compl. ¶ 58) The Trustees ultimately settled on a valuation of 80% of par. Id.
The Board met again at 1:00 p.m. on September 15. The Complaint alleges that RMCI and the Bents made several additional misstatements and omissions to the Board at this meeting including: (1) failing to inform the Board that State Street had suspended the Fund's overdraft privileges such that redemptions were no longer being paid; (2) understating the level of redemptions facing the Primary Fund; (3) failing to disclose that the Yield Plus and International Liquidity Funds, two other Reserve Funds holding Lehman debt, had broken the buck on the morning of September 15; and (4) failing to disclose that RMCI and Bent II had taken steps to avoid disclosure of the fact that the Yield Plus and International Liquidity Funds had broken the buck. (Compl. ¶¶ 62, 75)
At the 1:00 p.m. meeting, the Defendants introduced the idea of RMCI entering into a credit agreement to support the Fund's $1.00 NAV. The Complaint states that "persistent questions posed by the rating agencies and shareholders," as well as actions taken by another money market fund to protect its $1.00 NAV, "exerted immense pressure on RMCI and the Bents to publicly reassure shareholders that RMCI would in fact protect the $1.00 NAV of the Primary Fund." (Compl. ¶ 70) When the Board of Trustees convened at 1:00 p.m. on September 15, Bent II is alleged to have "informed the Trustees that RMCI intended to implement a credit support agreement to protect the $1.00 NAV of the Primary Fund" and to "seek immediate relief from the Commission to implement the credit support agreement." (Compl. ¶ 71) The Complaint indicates that outside counsel for the Independent Trustees asked whether RMCI had the financial resources to enter into such a support agreement. (Compl. ¶ 72) Bent Sr. is alleged to have reassured the Independent Trustees that RMCI would be able to provide sufficient capital. Id.
The Complaint alleges that at the 1:00 p.m. Board meeting, and throughout the day on September 15, Defendants failed to inform the Board not just of several crucial developments, but also of their "exceedingly grim assessment of the situation." (Compl. ¶ 101) For example, the Complaint alleges that by mid-afternoon "senior RMCI personnel, including the chief financial officer and CIO, had acknowledged that State Street's suspension of overdraft privileges (which occurred at approximately 10:10 a.m.) was the `kiss of death' for the Primary Fund, and that the Fund was `screwed' unless `something magical happens.'" Id. Nevertheless, the Board was not informed that State Street had suspended the Fund's overdraft privileges until the morning of September 16. (Compl. ¶ 116)
Shortly after the 1:00 p.m. Board meeting, Bent II sent an e-mail to RMCI's Director of Sales and Marketing, with cc's to RMCI's General Counsel, COO, and Bent Sr. (Compl. ¶ 77) The e-mail stated that RMCI "intend[s] to protect the NAV on the Primary Fund to whatever degree is required. We have spoken with the SEC and are waiting [for] their final approval which we expect to have in a few hours. You may communicate this to clients on an as needed basis . . . [ ] if you want something on the website I need to see language for approval first, thanks." Id. The Complaint alleges that this e-mail was "materially misleading" in that RMCI and the Bents did not intend to protect the Primary Fund's NAV "to whatever degree [was] required" and "had not yet arrived at any decision concerning whether and to *316 what extent [they] would support the Fund. . . ." (Compl. ¶¶ 78-79) Moreover, RMCI had not submitted a written request to the Commission seeking approval for a credit support agreement, and no such request was ever submitted. (Compl. ¶ 80)
Bent II also placed calls to rating agencies Moody's and Standard & Poor's and assured them that RMCI would be entering into a credit support agreement to preserve the $1.00 NAV of the Primary Fund. (Compl. ¶ 81)
As a result of Bent II's e-mail, the sales teamwhich included Resrv Partners sales personneltold Primary Fund shareholders about RMCI's planned credit support agreement. (Compl. ¶ 84) The Complaint alleges that some members of the sales team indicated that RMCI and the Bents would "definitively" "step in and support" the Reserve Funds and would take "whatever steps that are needed to support the NAV of the funds." Id. One salesperson is alleged to have told an investor that "we have a backstop and are going to ensure that the fund does not break a buck." Id. The Complaint also alleges that these representations concerning a credit support agreement were designed to encourage prospective investors to purchase shares in the Primary Fund. (Compl. ¶ 85)
Bent II's e-mail is also alleged to have led RMCI marketing personnel to issue a shareholder communication entitled "The Reserve Insights." This communication, which was reviewed before distribution by Bent II, Bent Sr., and RMCI's sales and marketing teams among others (Compl. ¶¶ 89-91), is alleged to contain the following false statements: (1) that RMCI intended to enter into a credit support agreement to support the Primary Fund's $1.00 NAV; (2) that RMCI was submitting appropriate documentation to the Commission to ensure the implementation of the credit support agreement; (3) that the support agreement would "ensure the integrity of the $1.00 NAV"; and (4) that the Lehman holdings would not have a "material impact" on the Fund or a "negative impact[ ]" on the Fund's NAV because the holdings would "mature at par value." (Compl. ¶ 92)
"The Reserve Insights" release was sent to numerous Primary Fund investors, as well as to Standard & Poor's and Moody's. (Compl. ¶¶ 93-96) The communication was later posted on RMCI's website and, on September 16, was e-mailed to Crane Data, a web site covering developments in the money market industry. (Compl. ¶ 113) E-mails written by RMCI's Director of Sales, as well as by RMCI's CIO, indicate that this communication slowed the rate of redemptions from the Primary Fund and delayed adverse action by the rating agencies. (Compl. ¶¶ 86-87, 96-97, 110)
The Complaint alleges that despite Defendants' assurances that a credit support agreement would be put in place, the Bents "never asked to review or execute" the draft documentation, nor did they submit any such documentation to the Commission for approval. (Compl. ¶¶ 98-99)
In addition to disseminating allegedly misleading information about a credit support agreement, the Complaint alleges that Defendants misled investors and rating agencies as to the true state of affairs at the Fund throughout the day on September 15. The Complaint claims that RMCI and Resrv Partners sales personnel "falsely assured investors via telephone communications and email that the Primary Fund was not experiencing any liquidity problems and that any delay in transmitting money was caused by operational or technical delays at State Street," despite knowing that State Street had suspended the Fund's overdraft privileges, resulting in *317 redemptions not being paid. (Compl. ¶ 102)
The Complaint also alleges that RMCI falsely informed Moody's during the afternoon of September 15 "that redemptions appeared to have `stopped'" and that RMCI had been able to generate sufficient liquidity to fund outstanding redemption requests by selling assets. (Compl. ¶ 103) This message was reiterated by Bent II in another communication with Moody's later that afternoon. (Compl. ¶ 104)
Later that day, Bent II is alleged to have authorized RMCI marketing personnel to offer further comfort to investors via the Wall Street Journal, by telling the paper that RMCI intended to "protect the NAV on the funds to whatever degree is required," despite the fact that this "protection has not been needed." (Compl. ¶ 109)
Despite giving these assurances, the Complaint alleges that Bent II had concluded "as early as midday on September 15 that RMCI should pursue an immediate sale of RMCI and the Reserve Funds to a third party." (Compl. ¶ 105) Indeed, the Complaint contends that RMCI retained two investment banks for this purpose. Id. On the morning of September 16, Bent II is alleged to have instructed the investment banks to inform potential buyers that they would not be required to protect the Primary Fund's $1.00 NAV. (Compl. ¶ 106)
The Board of Trustees met again at 10:00 a.m. on September 16. (Compl. ¶ 114) At that time, Bent II revealed that RMCI had not entered into a credit support agreement. (Compl. ¶ 115) He also informed the Board that redemption requests had reached approximately $24.6 billion, of which only approximately $10.7 billion had been paid. (Compl. ¶ 116) Bent II further disclosed that State Street had suspended the Fund's overdraft privileges the previous morning. Id. The Independent Trustees then ended the Board meeting and convened their own executive session. (Compl. ¶ 117) According to the Complaint, the minutes of the Independent Trustees' meeting indicate that the Independent Trustees were "shocked" by the information they had received, given that they had been told the previous afternoon that redemptions were only $5 billion and that RMCI had sufficient capital to support a $1.00 NAV. Id. Later that day, the Primary Fund announced it had broken the buck.[3]
Based on the conduct outlined above, the Complaint claims that (1) Defendants violated and aided and abetted violations of Section 10(b) of the Exchange Act and Rule 10b-5 (Compl. ¶¶ 127-130); (2) Bent Sr. and Bent II violated Section 20(a) of the Exchange Act (Compl. ¶¶ 131-133); (3) RMCI, Resrv Partners and Bent II violated Section 17(a) of the Securities Act (Compl. ¶¶ 134-136); (4) RMCI, Bent Sr. and Bent II violated Sections 206(1) and (2) of the Advisers Act (Compl. ¶¶ 137-139); (5) RMCI, Bent Sr. and Bent II violated Section 206(4) of the Advisers Act and Rule 206(4)-8 (Compl. ¶¶ 140-142); (6) Bent Sr. and Bent II aided and abetted violations of Section 206(1) and (2) of the Advisers Act (Compl. ¶¶ 143-145); and (7) Bent Sr. and Bent II aided and abetted violations of Section 206(4) of the Advisers Act and Rule 206(4)-8. (Compl. ¶¶ 146-148)
DISCUSSION
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to *318 relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "In considering a motion to dismiss.. . the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir.2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir.2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir.2006)). "When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' . . . complaint,. . . to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993).
I. THE COMPLAINT SATISFIES THE STANDARDS FOR PLEADING FRAUD SET FORTH IN FEDERAL RULE OF CIVIL PROCEDURE 9(b)
Federal Rule of Civil Procedure 9(b) requires that a party alleging fraud "state with particularity the circumstances constituting fraud. . . . Malice, intent, knowledge, and other conditions of a person's mind[, however,] may be alleged generally." Fed.R.Civ.P. 9(b).
A. The Complaint Adequately Pleads Scienter
Rule 9(b) represents a "relaxation" of the specificity requirement in pleading the scienter element of fraud claims, requiring that fraudulent intent need only be "alleged generally." See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994); Fed.R.Civ.P. 9(b). The Second Circuit has made clear, however, that this "relaxation . . . `must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.'" Id. (quoting O'Brien v. Nat'l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991)). Accordingly, the Second Circuit has long required plaintiffs making fraud claims to "allege facts that give rise to a strong inference of fraudulent intent." Novak v. Kasaks, 216 F.3d 300, 307 (2d Cir.2000); see also Shields, 25 F.3d at 1128.
Defendants argue that the Commission must meet the heightened pleading standard for scienter set forth in the Private Securities Litigation Reform Act ("PSLRA") and elaborated upon by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). (Def. Br. 13-14) The PSLRA adopts the "strong inference" standard set by the Second Circuit, requiring the plaintiff to "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). In Tellabs, however, the Supreme Court clarified that the "strong inference" required under the PSLRA exists only where "a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged." 551 U.S. at 322, 324, 127 S.Ct. 2499.
The PSLRA applies only to private actions, not to actions filed by the Commission. 15 U.S.C. § 78u-4(a)(1) ("The provisions of this subsection shall apply in each private action arising under this chapter."); see also SEC v. Dunn, 587 F.Supp.2d 486, 501 (S.D.N.Y.2008) ("Of course, by its terms, the PSLRA does not apply to this SEC enforcement action."). Defendants argue nonetheless that the Tellabs inter-pretation *319 of the "strong inference" standard "informs the Second Circuit's `strong inference' requirement under Rule 9(b)." (Def. Br. 13)
The Second Circuit, however, "has yet to decide Tellabs' effect on the requirements for pleading scienter in actions governed by Rule 9(b) but not governed by the PSLRA." Dunn, 587 F.Supp.2d at 501. Those courts in this Circuit that have directly addressed the issue have declined to apply the PSLRA's "strong inference" standard to Commission enforcement actions, and that is the approach this Court will adopt. See, e.g., SEC v. Pentagon Capital Mgmt. PLC, 612 F.Supp.2d 241, 263-64 (S.D.N.Y.2009) (declining to apply PSLRA's "strong inference" standard to SEC enforcement action); Dunn, 587 F.Supp.2d at 501 (same).
As the Dunn court stated:
[a]ny argument that Congress intended to apply the [PSLRA's standard] to SEC enforcement actions ignores the statute's plain language. . . . Indeed, as the Supreme Court explained, Congress designed the PSLRA specifically to address the perceived abuses of private securities litigation. See Tellabs, 127 S.Ct. at 2508. Extending its "heightened standard" to SEC enforcement actions, a context not found by Congress to harbor such abuses, does violence to that intent: had Congress wanted the PSLRA to restrain the SEC's ability to plead securities fraud, it could have said so easily.
Id. (emphasis in original); see also SEC v. Tambone, 550 F.3d 106, 119 (1st Cir.2008) ("[T]he additional scrutiny applied to allegations of scienter in private securities fraud complaints is unwarranted in this case. . . . The SEC need only allege scienter generally."); SEC v. Berry, 580 F.Supp.2d 911, 920-21 (N.D.Cal.2008). The approach adopted in Dunn is, as the court there stated, consistent with both the plain language of the statute and its statutory purpose.[4]
Under Rule 9(b), a "strong inference" of fraud "may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness." Novak, 216 F.3d at 307.
1. The Complaint Adequately Alleges that Defendants Had Motive and Opportunity to Commit Fraud
Defendants do not contest that they had an opportunity to commit fraud,[5] but contend that the Complaint does not adequately plead that they had a motive to commit fraud. (Def. Br. 11-13)
Motive to commit fraud entails "`concrete benefits that could be realized by one or more of the false statements and wrongful nondisclosures alleged.'" Novak, *320 216 F.3d at 307 (quoting Shields, 25 F.3d at 1130). Plaintiffs may not rely on "motives possessed by virtually all corporate insiders," but instead must allege "that defendants benefitted in some concrete and personal way from the purported fraud." Novak, 216 F.3d at 307-08. Thus, in alleging motive, "`a plaintiff must do more than merely charge that executives aim to prolong the benefits of the positions they hold.'" Kalnit v. Eichler, 264 F.3d 131, 139 (2d Cir.2001) (quoting Shields, 25 F.3d at 1130). Similarly, "the desire for the corporation to appear profitable," as well as "the desire to keep stock prices high to increase officer compensation," are "insufficient motives." Kalnit, 264 F.3d at 139.
Defendants argue that the Complaint's allegations establish only that they intended to preserve the Primary Fund, which is a "natural, pro-investor desire[ ]" that all corporate officers and directors of an entity share (Def. Br. 11-12; see Novak, 216 F.3d at 307-08), and that "[t]he only credible explanation for [their] conduct is that they did not believe on September 15 that the Fund was destined to collapse." (Def. Br. 13) The Complaint, however, alleges more than a desire on the Defendants' part to preserve the Primary Fund.
It is undisputed, for example, that the Bents had "significant holdings" in the Primary Fund. (Def. Br. 12) Moreover, RMCI and Resrv Partnerswhich the Bents own and controlact as the investment adviser and distributor of the Fund, respectively, and are paid fees for their services. See Compl. ¶¶ 19, 20. Accordingly, the Bents have a direct, personal financial stake in the Fund and in these entities and a motive to maximize not only their personal financial investment but also their entities' management fees. The Bents also have an enormous reputational stake in the Primary Fund. Bent Sr. founded RMCI and its flagship, the Primary Fund, more than thirty-five years ago (Compl. ¶¶ 19, 21, 26, 34); he "is the public face" of RMCI and its funds; and his family, including Bent II, control the Reserve Funds and their associated entities. (Compl. ¶¶ 19, 21-23, 26) Accordingly, Defendants' personal stake in the success of the Primary Fund goes far beyond that held by typical officers and directors.[6]
Several courts in this district have found that a desire to generate additional fee income may provide a sufficient motive to commit fraud, particularly where the defendant possesses a personal stake in the business and the fee income. For example, in Heller v. Goldin Restructuring Fund, 590 F.Supp.2d 603, 620-21 (S.D.N.Y.2008), the court found sufficient motive where the defendants "possessed the unique incentive, as managers of a *321 struggling, privately-owned investment fund in which they possessed a personal financial stake," to attempt to maximize not only their "personal financial investment" but also their "potential receipt of management fees."[7]Id. Similarly, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 446 F.Supp.2d 163 (S.D.N.Y. 2006), the court held that "[u]nlike a motive to increase stock prices, shared by all corporate insiders, a motive to generate increased fees based on inflated NAV figures would be `a concrete and personal benefit to the individual defendants'" who served as the administrators of the funds in question "`resulting from the fraud.'" 446 F.Supp.2d at 171, 187 (quoting Kalnit, 264 F.3d at 139) Likewise, in In re Global Crossing, Ltd. Securities Litigation, 322 F.Supp.2d 319, 345-46 (S.D.N.Y. 2004), the court found that the defendant auditing company's motive to increase the size of its consulting business which generated much higher fees than the firm's auditing business was "sufficiently concrete to survive a motion to dismiss."
Finally, the Defendants' alleged "confidence that they could preserve the Fund," and alleged belief that the Fund would not collapse (Def. Br. 13), does not require dismissal of the Complaint. Although a desire to preserve the Fund is obviously not necessarily fraudulent, the Complaint alleges that the actions Defendants took to prevent the collapse of the Fund were fraudulent, and were committed to avoid the financial and reputational harm they would suffer if such an event occurred. Even assuming that the Defendants believed that their actions would succeed in forestalling the collapse of the Fund, such a finding would not negate fraudulent intent as a matter of law.[8]
2. The Complaint Adequately Alleges Conscious Misbehavior or Recklessness
Even if the Commission had not alleged facts demonstrating motive and opportunity to commit fraud, Rule 9(b)'s scienter requirement is satisfied where a complaint contains factual allegations "`that constitute strong circumstantial evidence of conscious misbehavior or recklessness.'" Kalnit, 264 F.3d at 138-39 (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir.1995)). Plaintiffs proceeding under the "conscious misbehavior or recklessness" theory must allege reckless conduct that is "at the least . . . highly unreasonable and which represents an extreme *322 departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it." Kalnit, 264 F.3d at 142 (quoting Honeyman v. Hoyt, 220 F.3d 36, 39 (2d Cir.2000)).
While this is a "highly fact-based inquiry," securities fraud claims "typically" survive motions to dismiss where a plaintiff has "`specifically alleged defendants' knowledge of facts or access to information contradicting their public statements.'" Kalnit, 264 F.3d at 142 (quoting Novak, 216 F.3d at 308). A failure "to check information [defendants'] had a duty to monitor" may also give rise to a strong inference of recklessness. Novak, 216 F.3d at 311; see also Nathel v. Siegal, 592 F.Supp.2d 452, 464 (S.D.N.Y.2008). Under such circumstances, "defendants knew or, more importantly should have known that they were misrepresenting material facts related to the corporation." Kalnit, 264 F.3d at 142.
Where, as here, "information contrary to the alleged misrepresentations is alleged to have been known by defendants at the time misrepresentations were made, the falsity and scienter requirements are essentially combined." In re Revlon, Inc. Sec. Litig., No. 99 Civ. 10192 (SHS), 2001 WL 293820, at *7 (S.D.N.Y. March 27, 2001) (citing Rothman v. Gregor, 220 F.3d 81, 89-90 (2d Cir.2000)). As discussed below, the Commission has adequately pleaded that Defendants "knew or, more importantly should have known that they were misrepresenting material facts." Kalnit, 264 F.3d at 142 (citations omitted). Accordingly, the Commission has alleged "strong circumstantial evidence of conscious misbehavior or recklessness." Id. at 138-39 (citations omitted).
B. The Complaint Alleges Actionable Misstatements and Omissions
1. Redemption Activity and Fund Liquidity
The Complaint alleges that Defendants made a variety of false statements regarding the flood of redemptions that the Primary Fund experienced on September 15 and 16, 2008, and the liquidity crisis caused by those redemptions. These false statements were allegedly made by RMCI and Resrv Partners personnel, as well as by Bent II, to investors and to rating agencies, and involved assurances that the Fund had sufficient liquidity to satisfy redemption requests. (Compl. ¶¶ 102-104) The Complaint also alleges false statements and omissions made by RMCI personnel, including Bent Sr. and Bent II, to the Board concerning the level of redemption activity and Defendants' own concerns and plans for the Fund.[9] (Compl. ¶¶ 53, 60, 62, 75, 105, 116, 117) Defendants claim that these allegations are insufficiently pleaded because the Complaint does not allege that any of the Defendants had accurate information about redemption activity and the resulting liquidity crisis during the relevant time period. (Def. Br. 14-15)
Once a plaintiff has adequately alleged that a defendant made false or misleading statements about the core operations of a company, however, an inference arises
*323 that the defendant knew or should have known the statements were false when made. Indeed, if facts that contradict a high-level officer's public statements were available when the statements were made, it is reasonable to conclude that the speaker had intimate knowledge of those facts or should have known of them. Accordingly, if a plaintiff can plead that a defendant made false or misleading statements when contradictory facts of critical importance to the company either were apparent, or should have been apparent, an inference arises that high-level officers and directors had knowledge of those facts by virtue of their positions with the company.
In re Atlas Air Worldwide Holdings, Inc. Sec. Litig., 324 F.Supp.2d 474, 489 (S.D.N.Y.2004) (citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989)); see also In re Alstom SA Sec. Litig., 406 F.Supp.2d 433, 460 n. 20 (S.D.N.Y.2005).
The Fund's liquidity crisis and corresponding inability to satisfy redemption requests went to the Fund's "core operations" and were of critical importance to the Fund, its investment adviser, RMCI, and management distributor, Resrv Partners. As a money market fund, the Primary Fund was required to maintain a certain level of liquidity. Moreover, the payment of redemption requests shortly after they were submitted was the Primary Fund's "ordinary course" of practice. (Compl. ¶¶ 31-32)
Accurate information concerning the level of redemptions and the Fund's resulting liquidity crisis information that contradicts or undermines Defendants' assurances as outlined in the Complaint was available on September 15 and was "apparent, or should have been apparent" to the Bents and other senior RMCI and Resrv Partners officers at the time the alleged false statements and omissions took place.
For example, the Complaint alleges not only that the Primary Fund had $785 million in Lehman paper when that firm announced that it would file a bankruptcy petition, but that rating agencies began expressing concern about the Fund's liquidity in the wake of the Lehman filing "in the early morning on September 15." (Compl. ¶¶ 3, 63-65) These developments, coupled with the tremendous disruption caused by the flood of redemption requests and State Street's decision to suspend the Fund's overdraft privileges and halt redemptions at 10:10 a.m., were sufficiently serious that it is reasonable to infer that the Bents, RMCI, and Resrv Partners personnel were aware or should have been aware of them. (Compl. ¶ 101) Taken together, these allegations give rise to a "strong inference" that Defendants acted with "conscious misbehavior or recklessness" in making the false statements or omissions alleged in the Complaint concerning the Fund's redemption activity and resulting liquidity.
Defendants also argue that the omissions alleged in the Complaint including the failure to disclose to the Board at any time on September 15 the true level of redemptions and State Street's decision to cease funding redemptions are not actionable because the relevant information was disclosed the following day, at the Board's 10:00 a.m. meeting.[10] (Def. Br. 21-22) Citing SEC v. Texas Gulf Sulphur *324 Company, 401 F.2d 833, 851 (2d Cir.1968), Defendants assert that "the timing of disclosure is a matter for the business judgment of the corporate officers entrusted with the management of the corporation within the affirmative disclosure requirements promulgated by the exchanges and by the SEC."
Although Defendants may argue, as the case progresses, that their delay in disclosing this information to the Board was a matter of business judgment, that issue cannot be resolved now, on a motion to dismiss. Acito v. IMCERA Group, 47 F.3d 47 (2d Cir.1995), cited by Defendants, is not to the contrary. In that case, the Court stated that "[m]ere allegations that statements in one report should have been made in earlier reports do not make out a claim of securities fraud." 47 F.3d at 53. In Acito, however, the Court found that the disclosure of information in a later report was, at worst, "a matter of mismanagement" and thus was not actionable. Id. Here, the information the Defendants allegedly withheld was "catastrophic" with respect to the future of the Fund. In sum, the Complaint alleges with sufficient particularity that Defendants consciously or recklessly failed to disclose critical information concerning the Fund's condition at a time when the Fund was in an accelerating death spiral. This is sufficient to state a claim.
2. Credit Support Agreement
The Complaint alleges that Defendants made several false statements regarding their plans to enter into a credit support agreement that would preserve the Primary Fund's $1.00 NAV. These include statements made by Bent II in the e-mail he sent to subordinates after the 1:00 p.m. Board meeting on September 15, and subsequent statements Defendants' sales personnel made to shareholders and potential investors. (Compl. ¶¶ 77-80, 84, 85) Bent IT's e-mail is also alleged to have led to the creation and dissemination of the "The Reserve Insights" release, which reported that RMCI intended to enter into a credit support agreement and outlined the steps being taken to do so. (Compl. ¶ 92-96, 113) The communication also asserted that the planned credit support agreement would "ensure the integrity of a $1.00 NAV." Id. Defendants are alleged to have made similar representations to rating agencies and to the press. (Compl. ¶¶ 81, 109)
The Complaint further alleges that despite Defendants' assurances that a credit support agreement would be put in place the Bents "never asked to review or execute" the draft documentation, nor did they submit any documentation to the Commission for approval. (Compl. ¶¶ 98-99)
Citing In re Duane Reade Inc. Securities Litigation, No. 02 Civ. 6478 (NRB), 2003 WL 22801416 (S.D.N.Y. Nov. 25, 2003), Defendants argue that their statements of intent to enter into a credit support agreement are insufficient to support the alleged fraud claims. (Def. Br. 17-19) In Duane Reade, the court noted that "[n]ot all statements which in retrospect are inaccurate constitute material misstatements. A company's statements of hope, opinion, or belief about its future performance or general market conditions are not actionable under the securities laws." Id. at *4. The court went on to state, however, that "`[a]n opinion may.. . be actionable . . . if it is without basis in fact . . . [or if] the speakers were aware of any facts undermining the accuracy of these statements.'" Id. (quoting In re Int'l Bus. Mach. Corporate Sec. Litig., 163 F.3d 102, 107 (2d Cir.1998) (deletions in the original)). Moreover, "`[a] representation certified as true . . . when knowledge there is none, a reckless misstatement, or an opinion based on grounds so flimsy as to lead to the conclusion that there was no *325 genuine belief in its truth, are all sufficient upon which to base liability.'" CMNY Capital, L.P. v. Deloitte & Touche, 821 F.Supp. 152, 165 (S.D.N.Y.1993) (quoting Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 47-48 (2d Cir.1978)).
Here, the Complaint alleges that those who assured investors, rating agencies, and the Board that RMCI would enter into a credit support agreement to support the Fund's $1.00 NAV were aware that these statements were false. For example, the Complaint alleges that while Bent II was giving such assurances, he stated in a September 14 e-mail that additional lines of credit were "not an option" for the Primary Fund. (Compl. ¶ 47) Defendants assert that this e-mail refers only to the fact that the Fund did not have existing lines of credit in place on September 14 (Def. Br. 18), but the meaning of this e-mail presents a factual question that cannot be resolved on a motion to dismiss.
The Complaint also alleges that Defendants repeatedly stated an unqualified intention to support the Primary Fund's $1.00 NAV even though (1) "RMCI and the Bents had not yet arrived at any decision whether and to what extent RMCI would support the Primary Fund"; and (2) RMCI and the Bents "never intended to support the Fund in a manner that would have a remotely meaningful impact on the Fund's NAV." See e.g., Compl. ¶¶ 72-74, 92-95.
Defendants contend that the Complaint is insufficient because it does not allege that the statements about RMCI's intent to enter into a credit support agreement were false when made. In particular, they argue that they cannot be held accountable for failing to foresee the level of support that would be needed in a "doomsday scenario." (Def. Br. 20) In short, Defendants appear to be claiming that they were truthful in stating their intention to enter into a credit support agreement, but only at a level that assumed "an 80% valuation of Lehman, [and only] so long as redemptions stayed within a certain range." (Def. Br. 20 n. 11) The Complaint asserts, however, that Defendants' reservations were not shared with investors and rating agencies, and that Defendants instead promised unqualified support for the Fund's $1.00 NAV.
Although "[p]eople in charge of an enterprise are not required to take a gloomy, fearful or defeatist view of the future," this is only true "up to a point." Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004). Here, the "doomsday" scenario Defendants claim they could not have been expected to foresee had already arrived when they made the statements at issue. Indeed, all of the statements about the credit support agreement alleged in the Complaint were made after Lehman announced that it would file a bankruptcy petition, after the Fund experienced $10 billion in redemption requests, and after State Street suspended the Fund's overdraft privileges and stopped processing redemption requests. Given the events that occurred on the morning of September 15, it is not tenable for Defendants to argue that they could not have foreseen a scenario in which Lehman paper declined to a value below 80% of par or redemptions reached unprecedented levels. Indeed, the Complaint alleges that the value of Lehman paper was well below 80% of par, and redemptions had already exceeded $10 billion, before Defendants first stated their intention to enter into a credit support agreement. (Compl. ¶¶ 57, 61-62) Given these facts, there is a strong inference that Defendants acted with conscious misbehavior or recklessness in stating their intention to enter into a credit support agreement that would preserve the $1.00 NAV.[11]
*326 Defendants also argue that their statements about a potential credit support agreement are not actionable because they disclosed the fact that they had not entered into such an agreement "early in the morning on September 16," and the timing of disclosure is subject to the business judgment rule. (Def. Br. 20) This argument fails for the same reasons set forth above in connection with Defendants' alleged statements and omissions regarding redemptions and the Fund's liquidity. See supra p. 323-24.
Finally, Defendants argue that the Bents cannot be held liable for statements (1) made by the sales team that the Bents would "definitively" enter into a credit support agreement and that the Fund thus had "a backstop" (Compl. ¶ 84); and (2) in "The Reserve Insights" release that the credit support agreement would "ensure the integrity of a $1.00 NAV." (Compl. ¶ 92(c)). Although RMCI and Resrv Partners' responsibility for these claims does not appear to be in dispute, the Bents argue that they cannot be found liable for these statements because they are more definitive than statements allegedly made by the Bents directly. (Def. Br. 20-21)
This argument is disingenuous. Bent II's e-mail following the 1:00 p.m. Board meeting stated that RMCI "intend[ed] to protect the NAV on the Primary fund to whatever degree is required" and indicated that RMCI was awaiting the SEC's "final approval" to enter into a credit support agreement. (Compl. ¶ 77) This e-mail which was sent to RMCI's Directors of Sales and Marketing, as well as to RMCI's General Counsel, COO, and to Bent Sr. also stated that the information it contained could be communicated to clients. (Compl. ¶¶ 77-78) The e-mail was then used to draft "The Reserve Insights" release, which both Bent II and Bent Sr. approved prior to distribution. (Compl. ¶¶ 88-92)
While the Bents may have "`used another actor to deliver the message,'" they may still be liable. Gabriel Capital, L.P. v. NatWest Fin., Inc., 94 F.Supp.2d 491, 509 (S.D.N.Y.2000) (quoting In re Kidder Peabody Sec. Litig., 10 F.Supp.2d 398, 407 (S.D.N.Y.1998)); see also Seippel v. Sidley, Austin, Brown & Wood, LLP, 399 F.Supp.2d 283, 295 n. 60 (S.D.N.Y.2005). Here, Bent II's e-mail message on which Bent Sr. was copied and the substance of which he approved in connection with "The Reserve Insights" release is substantially similar to the statements made by the sales force. Indeed, the statements attributed to the sales force are no more definitive than Bent II's claim that RMCI "intend[ed] to protect the NAV on the Primary fund to whatever degree is required." See Compl. ¶ 77 (emphasis added). Accordingly, the Bents cannot disclaim liability for these statements.
3. Post-Bankruptcy Value of the Lehman Holdings
Defendants contend that the Complaint's allegations concerning their statements to the Board about the post-bankruptcy value of the Fund's Lehman holdings do not state a claim because they set forth only "non-actionable statements of opinion." (Def. Br. 16-17) The two statements at issue are: the representation by Bent Sr., Bent II and RMCI's CIO at the 9:30 a.m. Board *327 meeting on September 15 that bids for Lehman were between "45 to 80" cents on the dollar, and Bent Sr.'s initial recommendation to the Board at that same meeting that the Lehman debt be valued at par, despite his admission later in the meeting that he would not authorize RMCI to purchase Lehman debt at par. (Compl. ¶¶ 57-58)
Where the trading in a security is thin, valuing that security "may be considerably more a statement of opinion than a report of an objectively determinable fact." Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F.Supp.2d 349, 362 (S.D.N.Y.2007). "The sine qua non of a securities fraud claim based on false opinion is that defendants deliberately misrepresented a truly held opinion." Podany v. Robertson Stephens, Inc., 318 F.Supp.2d 146, 153-154 (S.D.N.Y.2004). "It is not sufficient to allege . . . that it would have been possible to reach a different opinion than that reached by defendant based on information available to defendant at the time, or even that the defendant's opinion was unreasonable." Id. at 154.
Here, the Complaint acknowledges that Defendants told the Board that there was "no valid market" for Lehman paper and stated that the estimates they offered were "being thrown out there" despite the lack of trading. (Compl. ¶ 57) Indeed, the Board adjourned the first scheduled meeting on September 15 because of difficulties in valuing the Lehman debt, and asked RMCI to gather additional market information. (Compl. ¶ 56) Accepting the allegations of the Complaint as true, it seems clear that the Board was aware that Defendants were offering opinions as to the value of the Lehman debt at the 9:30 a.m. meeting. The Complaint does not allege that Defendants deliberately misrepresented their opinions as to valuation. The closest the Complaint comes to making such a charge is the statement that Bent Sr. initially recommended that the Lehman paper be valued at par but later conceded that he would not authorize RMCI to purchase Lehman debt at par. (Compl. ¶ 58) Given the chaos and uncertainty caused by Lehman's bankruptcy, and the number of factors at play in arriving at a valuation of the Lehman holdings, these statements by Bent Sr. are insufficient to support a fraud claim. Indeed, the Commission does not argue to the contrary in its opposition to Defendants' motion to dismiss. Accordingly, the Commission may not rely on these statements in proving its fraud claims.
C. The Complaint Adequately Alleges Materiality
The Complaint's claims for relief require proof that the alleged misstatements or omissions were material. A complaint may not be dismissed on this ground, however, unless the alleged misstatements or omissions "are so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of their importance." Ganino v. Citizens Utils. Co., 228 F.3d 154, 162 (2d Cir.2000) (quoting Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985)).
Defendants argue that the alleged misstatements regarding the Bents' intent to enter into a credit support agreement "are demonstrably non-material given the events of the day." (Def. Br. 24-25) In particular, Defendants contend that assuming "that a reasonable person would attribute significance to a generic statement that individuals of limited means intended to enter into a credit support agreement to protect the Fund, when the scope of such assistance was not yet clear," requires one "to put aside common sense." (Def. Br. 25) This argument is frivolous. It is obvious that a reasonable investor might have viewed as important Defendants' *328 September 15 statements concerning a credit support agreement that would preserve the Primary Fund's $1.00 NAV. It is equally obvious that Defendants made these statements precisely because they believed that they would have some impact on investors. A number of the statements at issue were unqualified and unequivocal, and they were made by people intimately involved in the Fund's operations. Thus, it would be perfectly reasonable for an investor to take seriously the claims about a forthcoming credit support agreement. Indeed, the Complaint alleges that the Defendants' assurances regarding a potential credit support agreement had an impact on investors, because the rate of redemptions declined after these statements were issued. (Compl. ¶¶ 86-87, 96-97, 110) This is more than sufficient to establish for pleading purposes that the claimed false statements were material. See Ganino, 228 F.3d at 162.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is DENIED. The Clerk of the Court is directed to terminate the motion. (Docket No. 122)
SO ORDERED.
NOTES
[1] Only the Eighth Claim for Relief names the Reserve Primary Fund. That claim is addressed in this Court's November 25, 2009 Memorandum Opinion and Order. SEC v. Reserve Mgmt. Co. Inc., et al, 673 F.Supp.2d 182 (S.D.N.Y.2009). (Dkt. Nos. 201, 202)
[2] RMCI has since conceded that the Primary Fund "broke the buck" during the morning of September 16, 2008. In a November 26, 2008 press release, RMCI stated that the Primary Fund's NAV had dropped below $1.00 as of 11:00 a.m. on September 16. (Compl. ¶ 120) The November 26 press release explains that "an administrative error in computing the Fund's NAV" caused the mistake. Id.
[3] The subsequent liquidation of the Primary Fund's assets, including the distribution ordered pursuant to the Complaint's eighth claim for relief, is discussed in SEC v. Reserve Mgmt. Co. Inc., et al., 673 F.Supp.2d 182 (S.D.N.Y.2009). (Dkt. Nos. 201, 202).
[4] Defendants acknowledge that the Second Circuit has yet to decide this issue, but cite two district court decisions in support of their argument that the PSLRA scienter standard set forth in Tellabs applies to SEC enforcement actions. (Def. Br. 13 n. 7) Neither decision directly addresses, however, whether it is appropriate to apply the PSLRA standard to Commission enforcement actions. Instead, both decisions apply the PSLRA standard without discussion. SEC v. Boling, 2007 WL 2059744, at *4 n. 1 (D.D.C. July 13, 2007); SEC v. Northshore Asset Mgmt., No. 05 Civ. 2192(WHP), 2008 WL 1968299, at *7 (S.D.N.Y. May 5, 2008).
[5] Courts in this district have "`often assume[d] that corporations, corporate officers, and corporate directors would have the opportunity to commit fraud if they so desired.'" In re PXRE Group, Ltd., 600 F.Supp.2d 510, 529-30 (S.D.N.Y.2009) (quoting Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 446 F.Supp.2d 163, 181 (S.D.N.Y.2006)).
[6] Defendants claim that the Complaint must be dismissed because the Commission has not alleged that they "benefited from the alleged fraud" by, for example, selling their holdings in the Primary Fund before its collapse. (Def. Br. 12) In Fecht v. Northern Telecom Ltd., 116 F.Supp.2d 446, 462 (S.D.N.Y.2000), the court noted that "[t]he absence of stock sales by insiders, or any other evidence of pecuniary gain by company insiders at shareholders' expense, is inconsistent with an intent to defraud shareholders." In that case, however, the court held that "the individual defendants had nothing to gain" from the alleged fraud. Id. Here, the Complaint sets forth Defendants' direct, personal financial stake in the success of the Primary Fund, and it is clear that the Bents, as well as RMCI and Resrv Partners, had much to gain from the survival of the Fund even if that objective was accomplished through fraud. Moreover, motive allegations need only set forth "`concrete benefits that could be realized by'" the alleged fraud; the concrete benefits need not actually have been realized for a complaint to survive. See Kalnit, 264 F.3d at 139 (quoting Novak, 216 F.3d at 307).
[7] Courts in this district are "divided on whether the receipt of fees alone is enough to satisfy the `motive' requirement." Heller, 590 F.Supp.2d at 621. See, e.g., Steed Finance LDC v. LASER Advisers, 258 F.Supp.2d 272, 278 (S.D.N.Y.2003) (court found insufficient motive where plaintiff's sole theory was that better fund performance accomplished by fraud led to higher fees). Here, as noted above, there are fees plus a personal financial stake in the Fund, the management company, and the distributor.
[8] Defendants also argue that they "sought input and approval from all relevant sources, including the SEC itself, rather than acting secretly or on their own instincts or opinions," and that these actions "severely undercut[] the generic assertions of fraudulent intent. . . ." (Def. Br. 10-11) The cases Defendants cite in support of this proposition, however, indicate that consultation with counsel is one factor, or "possible evidence," that might be taken into account in evaluating whether those accused of fraud acted in good faith. See SEC v. Snyder, 292 Fed. Appx. 391, 406 (5th Cir.2008); Howard v. SEC, 376 F.3d 1136, 1147-48 (D.C.Cir.2004). The Second Circuit has held that where a defendant alleges that it acted in good faith and on advice of counsel, that defense generally presents a "triable issue" of fact. Leberman v. John Blair & Co., 880 F.2d 1555, 1560 (2d Cir.1989). Accordingly, while Defendants may have sought input from outsiders, such acts are not dispositive and merely constitute a factor to consider in determining fraudulent intent.
[9] Defendants do not dispute that if such statements were made, or such information was withheld, these statements would be false or misleading. The Complaint alleges that there was a liquidity crisis at the Reserve Fund, as State Street had suspended the Fund's overdraft privileges and ceased to pay redemptions as of 10:10 a.m. on September 15, 2008. (Compl. ¶ 101) The Complaint also claims that details about this liquidity crisis which was of crucial importance to the survival of the Fund were not disclosed to the Board on September 15, 2008. (Compl. ¶¶ 53, 60, 62, 75, 105, 116, 117)
[10] Defendants also argue that the Board was given accurate information concerning the level of redemption requests on September 15. (Def. Br. 6-7) The Complaint alleges, however, that the Board was told during the afternoon of September 15 that redemptions totaled $5 billion when in fact redemptions had exceeded $10 billion by 10:00 that morning. (Compl. ¶¶ 61, 117) In short, material issues of fact exist as to what the Board was told about redemption levels and when that information was communicated.
[11] With respect to Bent II's assertion, in his September 15 e-mail, that he was awaiting the Commission's "final approval" of a credit support agreement, Defendants point to an e-mail sent by RMCI's General Counsel a short time later to the same recipients stating that RMCI would "submit a form of the agreement to the SEC this afternoon." (Def. Br. 19-20; Martin Decl. Ex. A) Even assuming that the General Counsel's e-mail mitigates the impact of Bent II's earlier e-mail, Defendants do not explain why the statements Bent II made were not false and why this allegation is insufficiently pled and warrants dismissal.
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-0026-CV
Curtis Lewallen and Rubye Lewallen, Appellants
v.
Rosa Cross, Appellee1
FROM THE DISTRICT COURT OF McCULLOCH COUNTY, 452ND JUDICIAL DISTRICT
NO. 2013022, HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING
MEMORANDUM OPINION
Curtis Lewallen and Rubye Lewallen appeal a summary judgment granted in favor
of Rosa Cross on the grounds of limitations. The Lewallens initially filed a timely suit against Cross
in what their counsel thought was a county court at law. They later filed a voluntary nonsuit of that
suit. The Lewallens argue that the doctrine of equitable tolling, which tolls the limitations period
for suits filed against a wrong defendant, should be extended to apply to suits that are mistakenly
filed in the wrong court. We will affirm the judgment.
1
Rosa Cross died between the time she filed her answer and the signing of the judgment,
but no suggestion of death was filed and there is no appellate complaint about this omission. We
note that in similar contexts, established case law allows trial courts to proceed to judgment after the
court has acquired jurisdiction of the parties and subject matter of the suit. See Tex. R. Civ. P. 63,
152; Gracey v. West, 422 S.W.2d 913, 915 (Tex. 1968); Phillips v. Teinert, 493 S.W.2d 584, 586
(Tex. App.—Houston [14th Dist.] 1973, no writ) (Brown, J., dissenting).
DISCUSSION
Lewallens file suit in county court
The Lewallens’ negligence claims against Cross arose from an automobile accident
that occurred on or about December 13, 2010. On July 18, 2012, the Lewallens’ attorney filed
suit against Cross in what he thought was the county court at law of McCulloch County. However,
McCulloch County does not have a county court at law but rather has only a district court and a
constitutional county court. See Tex. Const. art. V, § 15 (establishing constitutional county courts);
Tex. Gov’t Code §§ 21.009(1) (defining “county court”); see also Tex. Const. art. V, § 8
(establishing district courts). Constitutional county courts have a jurisdictional limit of $10,000.
Compare Tex. Gov’t Code § 26.042(a) (limiting county court’s jurisdiction in civil cases to cases
in which matter in controversy does not exceed $10,000) with id. § 24.007 (stating that district court
has jurisdiction as set forth in constitution and original jurisdiction of civil matters in which amount
in controversy exceeds $500). The Lewallens’ attorney mistakenly believed he filed the Lewallens’
suit in a county court at law.2
The parties proceeded to conduct discovery, including Cross’s request for disclosure
to the Lewallens and both parties’ interrogatories and requests for production to each other. The
Lewallens’ attorney thereafter made unsuccessful attempts to communicate with defense counsel
during November and December 2012. On January 8, 2013, after the limitations period ran, the
2
The filed pleadings show his misunderstanding, with the original petition captioned “In
the County Court at Law of McCulloch County, Texas.” However, Cross’s answer was correctly
captioned “In the County Court of McCulloch County, Texas,” where the suit was actually filed.
The petition was file-stamped “Tina A. Smith McCulloch County Clerk.”
2
Lewallens’ attorney learned from defense counsel that there was no county court at law in
McCulloch County, that defense counsel considered the case to have a $10,000 limit, and that Cross
intended to assert a limitations defense if the Lewallens re-filed the suit in district court.
Lewallens file same suit in district court and nonsuit in county court
On January 16, 2013, while their county court suit against Cross was still pending
and after the statute of limitations ran, the Lewallens filed the same suit in the McCulloch County
District Court. Cross filed an answer specially excepting to the lack of a total damages amount in the
petition, asserting that the Lewallens’ district court claims were barred by limitations, and objecting
that the Lewallens could not simultaneously maintain suits on the same claims in county court
and district court. In response to this objection, the Lewallens’ attorney did not attempt to have his
county court suit dismissed for want of jurisdiction on the basis that he planned to seek damages in
excess of the court’s jurisdiction, rather, he filed a voluntary nonsuit of the county court case.
Cross files summary judgment motion challenging Lewallens’ district court suit
Cross subsequently filed a motion for summary judgment in the district court suit
asserting the limitations defense. The Lewallens filed a response arguing that the limitations period
was subject to equitable tolling because Cross had proceeded to litigate the suit in county court and
“lulled Plaintiff’s counsel into believing that he was litigating soundly.” The district court conducted
a hearing, took the matter under advisement, and then granted Cross’s motion.3 The Lewallens filed
3
The Lewallens’ suit was filed in the 198th District Court. Effective September 1, 2013,
the Legislature created the 452nd Judicial District of McCulloch County and moved the
198th Judicial District out of the county. See Act of May 26, 2013, 83d Leg., R.S., ch. 1059,
3
an untimely pro se motion for new trial complaining of what they contended was their attorney’s
poor representation. The same day, the Lewallens’ attorney filed this appeal on their behalf.
Standard of review
We apply well-known standards in our de novo review of a summary judgment. See
Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We must
determine whether there is more than a scintilla of probative evidence raising genuine issues
of material fact. Tex. R. Civ. P. 166a(c). We review the record in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor.
Knott, 128 S.W.3d at 215. A party moving for summary judgment on the basis of limitations must
conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996);
Palmer v. Enserch Corp., 728 S.W.2d 431, 435 (Tex. App.—Austin 1987, writ ref’d n.r.e.). If the
nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling
provision’s application to show his entitlement to summary judgment. Jennings, 917 S.W.2d at 793.
Here, because Cross’s motion for summary judgment met her initial burden of
demonstrating that the Lewallens’ suit was barred by the statute of limitations, the burden shifted
§ 1.03(b), sec. 24.377, 2013 Tex. Gen. Laws 2525, 2527 (current version at Tex. Gov’t Code
§ 24.377) (196th Judicial District is composed of Bandera and Kerr Counties); id., § 1.03(c),
sec. 24.596, 2013 Tex. Gen. Laws at 2527 (current version at Tex. Gov’t Code § 24.596)
(452nd Judicial District is composed of five counties including McCulloch); id. § 1.03(h), (j),
2013 Tex. Gen. Laws at 2528 (creating 452nd Judicial District and stating that local administrative
judge shall transfer to 452nd District Court all cases pending in 198th District Court on effective date
of Act). The Lewallens’ suit was transferred from the 198th District Court to the new 452nd District
Court, which heard and granted Cross’s summary judgment motion.
4
to the Lewallens to produce summary judgment evidence sufficient to raise a fact issue in avoidance
of Cross’s affirmative defense of limitations. See Forrest v. Vital Earth Res., 120 S.W.3d 480, 487
(Tex. App.—Texarkana 2003, pet. denied). We conclude that the Lewallens failed to raise a fact
issue on the applicability of equitable tolling to the filing of their district court suit and as such,
summary judgment was proper.
Equitable tolling based on adversarial inducement or trickery
The Lewallens’ three appellate issues are variations on the argument that we should
extend the doctrine of equitable tolling to apply to suits that are mistakenly filed in the wrong court.
Generally, personal-injury suits must be filed two years from the day that the cause of action accrues.
Tex. Civ. Prac. & Rem. Code § 16.003(a). Plaintiffs may seek an exception to this two-year filing
deadline through equitable tolling, which has been applied to cases in which plaintiffs have sued
the wrong defendant. The Texas Supreme Court has stated that equitable tolling applies specifically
“when the plaintiff could not, despite the exercise of reasonable diligence, have discovered all
the information he needed in order to be able to file his claim on time.” In re United Servs. Auto.
Ass’n, 307 S.W.3d 299, 311 (Tex. 2010) (quoting Taliani v. Chrans, 189 F.3d 597, 597 (7th Cir.
1999)). Equitable tolling also applies “where a claimant actively pursued his judicial remedies
but filed a defective pleading during the statutory period, or where a complainant was induced
or tricked by his adversary’s misconduct into allowing filing deadlines to pass.” Bailey v. Gardner,
154 S.W.3d 917, 920 (Tex. App.—Dallas 2005, no pet.).
The Lewallens seek equitable tolling via the latter route, arguing in their second issue
that the actions of Cross’s counsel “lulled” them into thinking that they were litigating in the proper
5
court until after the limitations deadline passed. In support of this argument the Lewallens offered
their attorney’s affidavit, which was attached to their summary judgment response.4 In the affidavit,
the attorney states that the parties conducted discovery while the case was pending in county court
and that in October 2012 he made two settlement offers to Cross, the first for $50,000 and the second
for $400,000.5 Defense counsel did not respond to the settlement offers. The attorney’s affidavit
also stated that in late November, he and defense counsel planned to discuss possible settlement in
the “next weeks,” but that in November and December he made three telephone calls to defense
counsel with no response. In January, defense counsel advised the Lewallens’ attorney that the
case was subject to the $10,000 damages limit of the county court and that Cross intended
to assert a limitations defense should the Lewallens attempt to file in district court. Eight days
after this conversation, the Lewallens’ attorney filed suit in district court. Cross continued to
conduct discovery in district court, sending the Lewallens a request for disclosure and requesting
4
The Lewallens’ attorney’s affidavit was unsigned and stated that it was “true to the best
of his knowledge and belief.” Cross complains that this unsigned statement fails to meet the
Texas Government Code’s requirements for an “affidavit,” which is defined as a written statement
of fact or facts, signed by the party making it, sworn to before an officer authorized to administer
oaths, and officially certified to by the officer under his seal of office. See Tex. Gov’t Code
§ 312.011(1); Mansions in the Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 316 (Tex. 2012).
A written statement that does not meet this basic statutory definition is “no affidavit at all.”
Mansions, 365 S.W.3d at 316 (quoting Hardy v. Beaty, 19 S.W. 778, 779 (Tex. 1892)). Cross
further complains that the attorney’s affidavit, which is “true to the best of his knowledge and
belief,” fails to qualify as summary judgment evidence because it does not state that it is based on
his personal knowledge. See Tex. R. Civ. P. 166a(f). These objections were not raised below, but
we need not decide the effect of that omission, if any, because the affidavit does not affect our
analysis, as noted above.
5
Attached to the affidavit were the Lewallens’ attorney’s time line of case events, his letter
to Cross’s counsel with the $400,000 settlement offer, his cover letter for a verification of the
Lewallens’ interrogatory answers, the first pages of the Lewallens’ petition and answer in county
court, and the first page of a notice of deposition by written questions with a district court caption.
6
Curtis Lewallen’s medical records. Cross later filed her motion for summary judgment, yet the
parties also discussed dates for the Lewallens’ depositions and a jury trial.
Cross correctly notes that Texas courts, including ours, have stated that
equitable tolling applies only to suits in which the wrong defendant was originally sued and the
correct defendant was not named until after the limitations period expired. See, e.g., Enserch Corp.
v. Parker, 794 S.W.2d 2, 5-6 (Tex. 1990); Bailey, 154 S.W.3d at 920; Felan v. Humana, Inc.,
163 S.W.3d 95, 97-98 (Tex. App.—San Antonio 2004, no pet.); Heart Hosp. IV, L.P. v. King,
116 S.W.3d 831, 836 (Tex. App.—Austin 2003, pet. denied); Walls v. Travis Cnty., 958 S.W.2d
944, 946 (Tex. App.—Austin 1998, pet. denied). This record does not reflect that Cross was named
incorrectly when the Lewallens originally filed suit. The Lewallens cite cases from Florida and
California but no Texas authority showing that the doctrine of equitable tolling applies to suits filed
after the limitations period in the wrong court. “As an intermediate appellate court, we are not free
to mold Texas law as we see fit but must instead follow the precedents of the Texas Supreme Court
unless and until the high court overrules them or the Texas Legislature supersedes them by statute.”
Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin 2004, no pet.).
Cross also contends that essential elements of equitable tolling, such as the filing of
a defective pleading and adversarial trickery, are lacking here. We agree. The Lewallens did not file
any “defective” pleading during the statutory period. Their county court petition stated affirmatively
that the court had subject-matter jurisdiction and there is no pleading of any damage amount, much
less any allegation that the damages they sought exceeded the $10,000 jurisdictional limit of the
McCulloch County Court. See Tex. Const. art. V, § 15; Tex. Gov’t Code §§ 21.009(1), 26.042(a).
7
Nor was the Lewallens’ counsel tricked by opposing counsel into allowing a filing deadline to pass.
He admitted as much to the district court at the summary judgment hearing, stating, “I’m not in
any way suggesting that he [defense counsel] was trying personally to deceive me,” and “Counsel
was not under an obligation to tell me of my error, and I want to emphasize here, Your Honor, that
I’m not suggesting that counsel had done anything improper or unethical.” Under Texas law, the
equitable-tolling doctrine does not operate on these facts to toll the two-year statute of limitations.
Statutory tolling
The only Texas case that the Lewallens’ reply brief cites implicates not equitable
tolling but statutory tolling. French v. Gill, 252 S.W.3d 748, 750 (Tex. App.—Texarkana 2008,
pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 16.064). Cross points out that the Lewallens did
not raise an argument about statutory tolling in response to her motion for summary judgment. We
cannot reverse a summary judgment on a ground not raised below. See Tex. R. App. P. 33.1(a);
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Further, even if the
Lewallens had raised it, we agree with Cross that statutory tolling does not apply here.
Statutory tolling is available under section 16.064 of the Texas Civil Practice
and Remedies Code for suits that are filed in the wrong court and dismissed for lack of jurisdiction.
See Tex. Civ. Prac. & Rem. Code § 16.064; United Servs. Auto. Ass’n, 307 S.W.3d at 311. Under
section 16.064, when a party previously filed suit in a different court and that first-filed suit was
dismissed for lack of jurisdiction, the statute of limitations may be tolled if the party re-files the suit
in a court of proper jurisdiction within sixty days after the dismissal:
8
(a) The period between the date of filing an action in a trial court and the date of a
second filing of the same action in a different court suspends the running of the
applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first
filed, the action is dismissed or the judgment is set aside or annulled in a
direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition
becomes final, the action is commenced in a court of proper jurisdiction.
(b) This section does not apply if the adverse party has shown in abatement that the
first filing was made with intentional disregard of proper jurisdiction.
Tex. Civ. Prac. & Rem. Code § 16.064.
The provisions of section 16.064 specify that tolling applies only when the first-filed
suit is dismissed for lack of jurisdiction. Id. Here, the Lewallens made no showing that their
county court suit was dismissed for lack of jurisdiction; rather, the record reflects that their
attorney voluntarily nonsuited the Lewallens’ county court suit after they had filed the same suit in
district court and the statute of limitations had run. The Lewallens’ nonsuit made statutory tolling
inapplicable.
Nonsuits do not toll limitations. Flatonia State Bank v. Southwestern Life Ins. Co.,
127 S.W.2d 188, 192-93 (Tex.), set aside on other grounds, 128 S.W.2d 790 (Tex. 1939) (“[I]f a
plaintiff voluntarily abandons his suit, the statute of limitation is not interrupted during the period
when the suit was pending.”); see Turner v. Texas Dep’t of Mental Health & Mental Retardation,
920 S.W.2d 415, 418 (Tex. App.—Austin 1996, writ denied) (noting that statutory tolling does
not apply if the causes of action in the suits are not the same or if first suit was not dismissed for
want of jurisdiction). A “voluntary nonsuit places the parties in the position they occupied before
9
the court’s jurisdiction was invoked, just as if the suit had never been brought.” Crofts v. Court of
Civil Appeals for the Eighth Supreme Judicial Dist., 362 S.W.2d 101, 104 (Tex. 1962); Guaranty
Cnty. Mut. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex. App.—San Antonio 1985), writ ref’d n.r.e,
709 S.W.2d 647 (Tex. 1986); Dalo v. Laughlin, 636 S.W.2d 585, 589-90 (Tex. App.—San Antonio
1982, no writ).
The tolling statute plainly does not apply if the original court had jurisdiction. See
Tex. Civ. Prac. & Rem. Code § 16.064; Malmgren v. Inverness Forest Residents Civic Club, Inc.,
981 S.W.2d 875, 879 & n.3, 880 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding that
statutory tolling did not apply because plaintiff voluntarily nonsuited first case and rejecting
argument that nonsuit taken because justice court did not have power to grant relief plaintiff
sought was equivalent of dismissal for lack of jurisdiction); see also Hotvedt v. Schlumberger Ltd.
(N.V.), 942 F.2d 294, 297 (5th Cir. 1991) (citing Dalo, 636 S.W.2d at 589-90 and concluding that
section 16.064 did not apply to attorney’s tactical decision to “prematurely and voluntarily” dismiss
first suit after statute of limitations had run). Thus, if the Lewallens’ suit against Cross had been
dismissed for lack of jurisdiction, rather than voluntarily nonsuited, and if they had re-filed their suit
in district court within sixty days of that dismissal, then their suit would have been tolled under
section 16.064. But on this record, the Lewallens cannot avail themselves of the statutory tolling
provisions in the Civil Practice and Remedies Code.
Equitable estoppel
Within their argument on equitable tolling, the Lewallens briefly contend that
equitable estoppel may apply to this case. Equitable estoppel may bar a defense of limitations
10
when a party, his agent, or representative makes representations that induce a plaintiff to delay
filing suit until the limitations period has run. Villages of Greenbriar v. Torres, 874 S.W.2d
259, 264 (Tex. App.—Houston [1st Dist.] 1994, writ denied); see Albertsons, Inc. v. JTM Materials,
Inc., No. 03-00-00148-CV, 2001 Tex. App. LEXIS 380, at *2-3 (Tex. App.—Austin Jan. 19, 2001,
no pet.) (not designated for publication). Equitable estoppel requires proof of: (1) a false
representation or concealment of material fact; (2) made with actual or constructive knowledge of
the facts; (3) to a party without knowledge or the means of knowledge of the real facts; (4) with the
intention that it should be acted upon; and (5) the party to whom it was made must have relied or
acted upon it to his prejudice. Torres, 874 S.W.2d at 264 (citing Cook v. Smith, 673 S.W.2d 232,
235 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)).
Here, the Lewallens did not show that defense counsel made a false representation
to the Lewallens’ attorney or concealed any material fact from him, about either the applicable
statute of limitations or the court where suit was first filed, that the Lewallens’ attorney had no
means of knowing himself. See id. (no fact issue about whether one attorney possessed knowledge
or means of knowledge of Family Code provision that another attorney did not). The Lewallens
never plead themselves out of court by filing a petition seeking damages in excess of the county
court’s jurisdiction. Further, the Lewallens’ attorney expressly denied that defense counsel tried to
deceive him or had done anything improper or unethical. Thus, this record does not support essential
elements of equitable estoppel.
After considering the appellate issues presented by the Lewallens, we conclude that
they did not raise any issue of material fact as to whether the statute of limitations was tolled for the
11
suit arising from their accident on December 13, 2010, and that Cross negated the applicability of
such tolling as a matter of law. See Jennings, 917 S.W.2d at 793. Because the two-year statute of
limitations was not tolled, the Lewallens’ district court suit filed on January 16, 2013 was time
barred. See Tex. Civ. Prac. & Rem. Code § 16.003(a). As such, the court did not err in granting
Cross’s motion for summary judgment. The Lewallens’ three appellate issues are overruled.
CONCLUSION
We affirm the district court’s judgment.
__________________________________________
Jeff Rose, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed
Filed: August 27, 2014
12
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0898n.06
No. 09-4525
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
PHILIP J. CHARVAT, ) Oct 17, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ECHOSTAR SATELLITE, LLC, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
Before: SUTTON and GRIFFIN, Circuit Judges, and BERTELSMAN, District Judge.*
PER CURIAM: On December 30, 2010, we issued an opinion in this case, invoking the
doctrine of primary jurisdiction and referring the matter to the Federal Communications Commission
(FCC) to allow the agency to interpret certain provisions of the Telephone Consumer Protection Act,
47 U.S.C. § 227, and its accompanying regulations. Charvat v. EchoStar Satellite, LLC, 630 F.3d
459, 468 (6th Cir. 2010). On May 9, 2013, the FCC issued a declaratory ruling interpreting the
Telephone Act. In re Dish Network, LLC, 28 FCC Rcd. 6574 (2013). Accordingly, we now vacate
the judgment of the district court and remand this case for consideration of Charvat’s claims in light
of the FCC’s ruling.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
| {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2009
No. 09-40528
Summary Calendar Charles R. Fulbruge III
Clerk
SHAWN K. ODNEAL,
Plaintiff-Appellant
v.
R. HINOJOSA, Correctional Officers; C. PUENTIS, Captain,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CV-70
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Shawn K. Odneal, Texas prisoner # 917382, appeals the
dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) (failure to state a claim on which relief may be
granted) and § 1915A(b)(1) (frivolous, malicious, or failure to state a claim upon
which relief may be granted). In that regard, Odneal’s punishments of 45 days
*
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. 09-40528
of recreation restriction, 45 days of commissary restriction, and demotion in
time-earning class were held not to implicate his due process rights, according
to Sandin v. Conner, 515 U.S. 472, 486 (1995). Odneal maintains Sandin could
not be relied upon because he was found guilty in a disciplinary hearing without
any evidence of guilt and not given a written statement of the evidence.
A § 1915(e)(2)(B)(ii) dismissal is reviewed de novo. E.g., Black v. Warren,
134 F.3d 732, 733-34 (5th Cir. 1998); Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005). In Sandin, the Court held: a prisoner’s protected liberty interests are
“generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”.
Sandin, 515 U.S. at 484 (internal citations omitted). Along that line,
punishments such as loss of recreation and commissary privileges, cell
restriction, and change in time-earning status do not implicate due process
concerns. See Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000); see also
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Therefore, Odneal’s
punishments “did not present the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest”. Sandin, 515 U.S. at
486 (involving disciplinary segregation for 30 days as punishment for violating
prison disciplinary rules).
Odneal has not identified a constitutionally protected liberty interest. In
short, his claims of due process violations at his hearing, even if true, failed to
state a claim for relief under § 1983. Accordingly, he has not shown that the
district court erred in dismissing his due process claims for failure to state a
claim.
Further, Odneal’s appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5 TH C IR. R. 42.2.
2
No. 09-40528
The dismissal of this appeal as frivolous and the district court’s dismissal
for failure to state a claim each count as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Odneal is cautioned that, once he accumulates three strikes, he may not proceed
in forma pauperis in any civil action or appeal filed while he is incarcerated or
detained in any facility, unless he is under imminent danger of serious physical
injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
3
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
Tenth Circuit
June 26, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CHARLES MOORE,
Plaintiff - Appellant, No. 08-7112
v. (E.D. Oklahoma)
JUSTIN JONES, Director; RANDALL (D.C. No. 07-CV-00062-RAW-SPS)
WORKMAN, Warden; LIEUTENANT
HANCOCK; RANDY RODEN, Tower
#5 Officer,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
After examining the appellate briefs and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Proceeding pro se, Oklahoma state prisoner Charles Moore appeals the
district court’s dismissal of the civil rights complaint he brought pursuant to 42
U.S.C. § 1983. The claims asserted in Moore’s complaint arose from an incident
in which Moore was assaulted by several other inmates. Moore alleged violations
of his Eighth and Fourteenth Amendment rights in connection with the incident.
Defendants moved to dismiss Moore’s complaint, arguing, inter alia, that he
failed to exhaust his administrative remedies. The district court granted the
motion and Moore appeals.
This court conducts a de novo review of a dismissal for failure to exhaust
administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002). The Prison Litigation Reform Act (“PLRA”), requires that
“available” administrative remedies be exhausted prior to filing a § 1983 action
with respect to prison conditions. 42 U.S.C. § 1997e(a). The record contains a
copy of an inmate grievance report form signed by Moore and dated November
10, 2006. On December 12, 2006, Moore submitted a Request to Staff inquiring
about the status of his grievance. In response, Moore was advised that the
Oklahoma State Penitentiary had no record of his grievance. He then submitted
the grievance to the Oklahoma Department of Corrections. The grievance was
returned to Moore on January 11, 2007, with instructions to resubmit it to the
facility head. There is no evidence in the record that the grievance was
resubmitted or that Moore pursued any other administrative remedy.
-2-
In Jernigan, this court held that “[a]n inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983 claim under the
PLRA for failure to exhaust his administrative remedies.” Id. By not
resubmitting his grievance as instructed, Moore failed to employ the
administrative remedies available to him. See id. at 1032-33.
The district court’s judgment dismissing Moore’s complaint without
prejudice is affirmed. Moore’s application to proceed in forma pauperis on
appeal is granted, but he is reminded he remains obligated to continue making
partial payments until his appellate filing fee is paid in full. See 28 U.S.C.
§ 1915(b).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4623
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS NEFTALI MONTES SEVILLA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:12-cr-00228-HMH-1)
Submitted: December 14, 2012 Decided: January 10, 2013
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Max B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Santos Neftali Montes Sevilla (“Montes Sevilla) pled
guilty to one count of unlawfully entering the country after
having been deported subsequent to a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). He was sentenced to twenty-seven months’ imprisonment,
the low end of the properly calculated Guidelines. On appeal,
Montes Sevilla contends the district court committed procedural
error by not adequately explaining the sentence. We affirm.
This court reviews a sentence for reasonableness under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51. While a sentence may be
substantively unreasonable if the § 3553(a) factors do not
support the sentence, “[r]eviewing courts must be mindful that,
regardless of ‘the individual case,’ the ‘deferential abuse-of-
2
discretion standard of review . . . applies to all sentencing
decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall,
552 U.S. at 52). Moreover, a sentence that falls within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
A sentencing court has the obligation to provide an
individualized explanation for the sentence imposed. However,
it need not go through every subsection in 18 U.S.C. § 3553(a),
“particularly when imposing a within-Guidelines sentence.”
United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011)
(internal quotation marks omitted). In fashioning a sentence,
the district court is instructed to allow the parties “to argue
for what they believe to be an appropriate sentence and consider
those arguments in light of the” § 3553(a) sentencing factors.
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010).
The court is statutorily required to state its reasons for
imposing a particular sentence. It must provide enough
information to show the appellate court that it considered the
parties’ arguments and that it has a reasoned basis for
exercising its own authority. Id.
At sentencing, Montes Sevilla’s counsel noted the
Appellant’s age when he committed the predicate felony offense
3
and that he will be deported once he has finished serving his
sentence. However, counsel never requested a particular
sentence, much less a sentence below the Guidelines.
Even if the district court did not give a sufficient
explanation for the sentence imposed, as is argued in this case,
this court does not need to vacate the sentence. To preserve a
challenge for this type of procedural error, counsel must make
arguments based in § 3553(a) “for a sentence different than the
one ultimately imposed.” Powell, 650 F.3d at 395 (internal
quotation marks omitted).
Because Montes Sevilla did not argue for a sentence
different than the one imposed, review is for plain error. See
id. at 395. In order to meet this standard, Montes Sevilla must
show that, “absent the error, a different sentence might have
been imposed.” United States v. Hernandez, 603 F.3d 267, 273
(4th Cir. 2010). He has failed to do that. There is nothing in
the record to suggest that even if the court erred by not giving
a fuller explanation of the sentence, that absent the error,
Montes Sevilla would have received a different sentence.
Accordingly, because Montes Sevilla failed to
establish plain error, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
4
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
5
| {
"pile_set_name": "FreeLaw"
} |
797 F.Supp.2d 587 (2011)
Daniel J. GOODSON, III, Plaintiff,
v.
Lawrence O. MAGGI, et al., Defendants.
Civil Action No. 08-44.
United States District Court, W.D. Pennsylvania.
June 23, 2011.
*591 Daniel J. Goodson, III, New Kensington, PA, pro se.
Paul R. Scholle, Office of the Attorney General, Marie Milie Jones, Jeffrey Cohen, Jonespassodelis PLLC, James R. Schadel, Weinheimer, Schadel & Haber, Edmond R. Joyal, Jr., Law Office of Joseph S. Weimer, Pittsburgh, PA, Friedrick C. Haines, Colorado Department of Law, Denver, CO, for Defendants.
MEMORANDUM ORDER
GARY L. LANCASTER, Chief Judge.
Plaintiff's Complaint was received by the Clerk of Courts on January 11, 2008 and was referred to Chief United States Magistrate Judge Lisa Pupo Lenihan for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
The Magistrate Judge's Report and Recommendation (Doc. No. 284) filed on June 3, 2011, recommended that the Motion to Dismiss filed by Defendant La Plata County District Court (Doc. No. 184) be granted. Service was made on all counsel of record and pro se Plaintiff Daniel J. Goodson, III. The parties were informed that in accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Federal Rule of Civil Procedure 72(b)(2), and Local Rule of Court 72.D.2., the parties had fourteen (14) days from the date of service to file objections to the Report and Recommendation. No objections have been filed. After review of the pleadings and the documents in the case, together with the Report and Recommendation, the following Order is entered:
AND NOW, this 23 day of June, 2011,
IT IS HEREBY ORDERED that the Motion to Dismiss (Doc. No. 184) filed by Defendant La Plata County District Court is GRANTED.
IT IS FURTHER ORDERED that the Report and Recommendation (Doc. No. 284) of Magistrate Judge Lenihan, dated June 3, 2011, is adopted as the Opinion of the Court.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, United States Chief Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss (ECF No. 184) filed by Defendant District Court of La Plata County, Colorado be granted.
II. REPORT
A. Relevant Facts
Plaintiff Daniel J. Goodson III (hereinafter "Father" or "Plaintiff") is a pro se individual who has filed this civil action pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988 on behalf of himself and his four minor children, D.G. VI, J.G., S.G. and *592 D.G. (ECF No. 36 at Overview.)[1] At ECF No. 242 Chief District Judge Lancaster dismissed the claims of minor Plaintiffs without prejudice, and on December 23, 2010, these minor children were terminated as parties in the above-captioned case. Therefore, Father, Daniel J. Goodson, III, is the only remaining Plaintiff.
Plaintiff asserts violations of his First, Fourth, Fifth, Sixth, Thirteenth and Fourteenth Amendment rights. (ECF No. 36 at Overview.) The Amended Complaint contains a plethora of different claims regarding a variety of different situations. The majority of the claims, however, stem from custody proceedings regarding Father's children in the state courts of Pennsylvania and Colorado (hereinafter the "underlying custody matter"). Plaintiffs have named 37 different defendants who are judges, courts, court employees, county commissioners and controllers, social workers employed by various county children and youth services, the mothers of Father's children, Father's former counsel, foster parents, a guardian ad litem, a state trooper, a prison official, a sheriff, and state and federal prosecutors.
Presently before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendant La Plata District Court. D.G. VI, J.G., and S.G (collectively "children") were born to Father and his former wife, Defendant Tara Thompson ("Thompson"). (ECF No. 36 at Synopsis.) According to Plaintiff, Father and Thompson divorced in 2000, and he filed for custody of the children in Westmoreland County Court of Common Pleas ("Westmoreland County Court"). (ECF No. 36 at Synopsis.) In the meantime, Thompson and children moved to Colorado and she filed for divorce in the La Plata County District Court in Durango, Colorado (hereinafter "Colorado Court"). (ECF No. 36 at Synopsis.) Defendant Judge John Driscoll of the Westmoreland County Court relinquished jurisdiction of the case to the Colorado Court. (ECF No. 36 at ¶ 31.) During all or most of these four years, Father was incarcerated in Allegheny County Jail. (ECF No. 36 at Synopsis.) Father's parental rights to D.G. VI, J.G., and S.G were involuntarily terminated by the Colorado Court in 2004. (ECF No. 36 at Synopsis.)
Plaintiff seeks generally declaratory, injunctive and monetary relief against all Defendants. (ECF No. 36 at Posture.) With regard to the Colorado Court, which has filed the instant motion to dismiss, Plaintiff requests the following injunctive and/or declaratory relief:
(1) declare Colorado State Court's judgment null and void and reverse;
(2) order that the names of the minor children be changed back to their birth names;
(3) order that D.G. IV, J.G., and S.G. be returned to Pennsylvania and that they be placed under the guardianship of their paternal grandparents;
(4) order that jurisdiction in all custody matters be remanded to the Westmoreland County Court and Westmoreland County CYS;
(5) order that an injunction issue to disqualify the Colorado Court and relieve it of any jurisdiction; and
(6) order a federal investigation of all Defendants' conduct and actions in relating to the Amended Complaint.
*593 (ECF No. 36 at Posture.) In addition, Plaintiff also requests an order directing (1) the filing of federal criminal charges against those Defendants as warranted and (2) a federal investigation of all Defendants' conduct and actions in regard to the complaint. With regard to monetary relief, Plaintiff seeks from each Defendant compensatory damages in the amount of $50,000 and punitive damages in the amount of $100,000. (ECF No. 36 at Posture.)
In his response (ECF No. 210) to the Colorado Court's Motion to Dismiss, Plaintiff states that the following averments of the Amended Complaint are directed against the Colorado Court (as well as other defendants):
1) That Plaintiff has a right to protect and communicate with his minor children although he is temporarily incarcerated, and that Defendants have conspired to interfere with his civil rights. (ECF No. 36 at ¶ 17.)
2) That Defendants, over a period of hearings, told him that he would never see any of his children again, including D.G., and that his parental rights would eventually be terminated. (ECF No. 36 at ¶ 19.)
3) Plaintiff avers that his injuries from Defendants' actions are continuing and he is not seeking medical, psychiatric and legal assistance. He states that he suffers from migraine headaches, severe depression and mood disorders as he continues to fight for his family. (ECF No. 36 at ¶ 25.)
4) That all Defendants are negligent in violating Plaintiff's due process and equal protection rights through false statements, conspiracy, gross and malicious actions, and acting outside the scope of their professional capacities acting under color of state law. Plaintiff further avers that Defendants have tried to preclude Plaintiff from filing complaints, and exercising his appellate rights, forbade his testimony, as well as his freedom of speech to the court and news media. He also avers that Defendants have manipulated the legal system to cause him harm by stealing his rights and freedoms to his children. Plaintiff further avers that all have made racial slurs/remarks towards him and his family. (ECF No. 36 at ¶ 29.)
5) Plaintiff avers that all minor children's ties with Plaintiff and his family (who are black), have been severed by Defendants. Plaintiff states that "[a]ll ties with the children's natural paternal family tree have been negligently and grossly terminated with extreme racial bias by the defendants from the start of proceedings involving minor children. (ECF No. 36 at ¶ 35.)
6) Specifically, as to the Colorado Court, Plaintiff avers that it grossly and maliciously violated Plaintiff's due process rights. Plaintiff alleges that the evidence presented at the termination proceedings was not clear and convincing, statements were unsubstantiated, and no evidence was presented "to support any action." (ECF No. 36 at ¶ 37.) Plaintiff was not afforded counsel, and no guardian ad litem was appointed for minor children. Further, Plaintiff avers that he was not advised of his right to counsel or the right to appeal. (ECF No. 36 at ¶ 37.)
7) Plaintiff alleges that Judge Walker, then a magistrate in the Colorado Court, together with Defendants Thompson and the Colorado Court, under color of state law, acted outside *594 the scope of their duties to deprive him of his federal rights, and that they conspired against him, denying him equal protection of the laws. He adds that the Colorado Court involuntarily terminated his parental rights on clearly falsified and frivolous evidence. Plaintiff avers that the biological mother of all but one of his children, Defendant Thompson, was employed by an agency of, or for, the Colorado Court and that she used "her influence and constituency to ascertain decision and judgments of [the] court in her favor ...." (ECF No. 36 at ¶¶ 38-40.) Plaintiff also indicates that Defendant Thompson is a convicted felon and "has a history of crimen falsi." (ECF No. 36 at ¶ 39.)
8) Plaintiff also avers that the Colorado Court relied on lies by Defendant Thompson in involuntarily terminating Plaintiff's parental rights, and that Plaintiff was never informed of "defense opportunity or appeal opportunity." (ECF No. 36 at ¶ 41.)
9) In Paragraph 53 of the Amended Complaint, Plaintiff alleges that Defendant Judge Walker, then a magistrate in the Colorado Court, acting under color of law and outside the scope of his duties, denied Plaintiff his right to counsel, disregarded the best interests of Plaintiffs' children, relied on circumstantial evidence and hearsay, and avers that Judge Walker is a racist, especially concerning interracial relationships. Plaintiff further alleges that the Colorado Court conspired with others to deprive Plaintiff of his constitutional rights before, during and after court proceedings, and that he was aware of the alleged conflict of interest because of Defendant Thompson's employment with the court. (ECF No. 36 at ¶ 53.)
10) Plaintiff avers that all defendants conspired with one another by off record comments, internet exchanges, and with written and telephonic communications. (ECF No. 36 at ¶ 84.)
11) Finally, Plaintiff asserts state law claims of outrageous conduct, intentional infliction of emotional distress, and gross negligence against all Defendants.
B. Legal Standards
PRO SE PLEADINGS
The Court must liberally construe the factual allegations of Plaintiff's Amended Complaint because pro se pleadings, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Further, Federal Rule of Civil Procedure 8(e) requires that all pleadings be construed "so as to do justice." Fed.R.Civ.P. 8(e).
MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)
A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Patsakis v. Greek Orthodox Archdiocese of America, 339 F.Supp.2d 689, 692 (W.D.Pa.2004) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977)); Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). In the case at bar, the Colorado Court presents a facial challenge. (Brief in Support of Motion to Dismiss, ECF No. 195 at 3.) In a *595 facial attack, the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Mortensen, 549 F.2d at 891; In re Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir.2005).
In support of its Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Colorado Court argues that Plaintiff's claims are barred by the Eleventh Amendment because under Colorado law, it is an agency of the State of Colorado. The Colorado Court also argues that Plaintiff's claims are barred by the Rooker-Feldman doctrine in that Plaintiff seeks appellate-type review of a final judgment of the Colorado Court. In response, Plaintiff contends that the Colorado Court was acting in its individual capacity and its actions were so egregious that it has waived its Eleventh Amendment immunity. Plaintiff also argues that this case involves a state court conspiracy and does not involve a Colorado state court judgment. Finally, Plaintiff concedes that he "seeks no redress for injuries of their unlawful and highly questionable court proceedings... but here Plaintiff[ ] seek[s] redress as to the State Law claims/violations perpetrated by these Defendants in their individual capacities while on some occasions during official actions." (Plaintiff's Answer to Motion to Dismiss, ECF. No. 210 at 2.)
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (May 18, 2009) (citing Twombly, 550 U.S. at 555-57, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The Supreme Court further explained:
The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'"
Id. (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955).
Recently, in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009), the United States Court of Appeals for the Third Circuit discussed its decision in Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir.2008) (construing Twombly in a civil rights context), and described how the Rule 12(b)(6) standard had changed in light of Twombly and Iqbal as follows:
After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable *596 inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 550 U.S. at 555, & n. 3, 127 S.Ct. 1955.
Fowler, 578 F.3d at 210.
Thereafter, In light of Iqbal, the United States Court of Appeals for the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009), set forth a two-prong test to be applied by the district courts in deciding motions to dismiss for failure to state a claim:
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show [n]'-`that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Fowler, 578 F.3d at 210-11.
In support of the Motion to Dismiss pursuant to Rule 12(b)(6), the Colorado Court argues that Plaintiff has failed to state a claim as a matter of law because States and their agencies are not persons with the meaning of §§ 1983, 1985(3) and 1986. In addition, Plaintiff's claims for injunctive and declaratory relief are barred by the Anti-Injunction Act, 28 U.S.C. § 2283. Further, Plaintiff's claims fail to satisfy the facial plausibility requirements of Twombly.
Plaintiff responds that the "Amended Complaint clearly places Defendants on notice and shows entitlement of relief that is plausible on its face." (Plaintiff's Answer to Motion to Dismiss, ECF. No. 210 at 2.)
C. Analysis
MOTION TO DISMISS PURSUANT TO RULE 12(b)(1)
11th Amendment Immunity
A Rule 12(b)(1) motion is the proper vehicle for asserting Eleventh Amendment immunity because the Eleventh Amendment "is a jurisdictional bar which deprives federal courts of subject matter jurisdiction." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir. 1996).
The Eleventh Amendment bars civil rights suits against a state in federal court by private parties where the state has not consented to such action. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.1981) (citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978)). This immunity applies even to claims seeking injunctive relief. Id.; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding Eleventh Amendment immunity applies "regardless of the nature of the relief sought."). Eleventh Amendment immunity protects entities created by state governments that operate as alter egos or arms of the State. See Lake Country Estates v. Tahoe Regional *597 Planning Agency, 440 U.S. 391, 402, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (denying Eleventh Amendment Immunity to a bi-state agency that was more akin to a political subdivision than an arm of the State); Ambus v. Granite Bd. Of Educ., 995 F.2d 992, 994 (10th Cir.1993) (en banc) (Eleventh Amendment immunity "extends only to the states themselves and to those governmental entities that are `arms of the state.'"). The La Plata District Court is the State of Colorado's Sixth Judicial District Court. § 13-5-107, Colo.Rev.Stat. (2009). District Courts are created within the Judicial Department of the State of Colorado pursuant to power vested in the Colorado General Assembly by the state constitution. Colo. Const. art. VI, § 1, §§ 9-10; see § 13-5-101, Colo.Rev.Stat. (2009). Therefore, district courts in Colorado are departments or arms of the State. In addition, none of the factual allegations contained in the Amended Complaint indicate or even suggest that the District Court of La Plata County, Colorado consented to be sued by Plaintiff, a private party, in this federal court. Therefore, the District Court of La Plata County, Colorado is immune from suit by the Eleventh Amendment, and consequently, this Court lacks subject matter jurisdiction over these Defendants.
Rooker-Feldman
The Rooker-Feldman doctrine is a judicially-created doctrine that bars lower federal courts from reviewing certain state court actions. The doctrine originated from two Supreme Court opinions: Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Specifically, the Rooker-Feldman doctrine holds that a United States District Court has no subject matter jurisdiction to review final judgments of a state court, because only the Supreme Court has jurisdiction to review state court judgments under 28 U.S.C. § 1257. Feldman, 460 U.S. at 482, 103 S.Ct. 1303.[2] "The Rooker-Feldman doctrine is based on the statutory foundation of 28 U.S.C. § 1257 and the well-settled understanding that the Supreme Court of the United States, and not the lower federal courts, has jurisdiction to review a state court decision." Parkview Assocs. P'ship v. City of Lebanon, 225 F.3d 321, 324 (3d Cir.2000); see also Gulla v. North Strabane Twp., 146 F.3d 168, 171 (3d Cir.1998). This doctrine applies even where the challenges to the state court judgment allege that the state court's action was unconstitutional, such as a deprivation of due process and equal protection rights. Feldman, 460 U.S. at 485-86, 103 S.Ct. 1303 (citation omitted).
In Exxon Mobil Corp. v. Saudi Basic Industries Corporation, the Supreme Court emphasized the narrowness of the doctrine and held that Rooker-Feldman is "confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejections of those judgments." 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); see also Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 544 (3d Cir.2006) (citing Exxon Mobil, id.).[3] The Court in Exxon Mobil further clarified *598 that just because a federal claim was previously adjudicated in state court does not trigger the application of Rooker-Feldman. Thus, the court must determine if the plaintiff in the federal lawsuit has presented "some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party." Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (citations omitted). If the court finds that an independent claim has been presented, then jurisdiction exists and state law controls whether the defendant prevails on preclusion principles. Id. As the Court pointed out, "[p]reclusion, of course, is not a jurisdictional matter." Id. (citing Fed.R.Civ.P. 8(c)).
Shortly after the Supreme Court's determination in Exxon Mobil, the United States Court of Appeals for the Third Circuit, while acknowledging the recent Exxon Mobil decision, still applied the two-step Rooker-Feldman inquiry that it had applied in the pasta claim in federal court will be barred by Rooker-Feldman under two circumstances: "first, if the federal claim was actually litigated in state court prior to the filing of the federal action or, second, if the federal claim is inextricably intertwined with the state adjudication, meaning that federal relief can only be predicated upon a conviction that the state court was wrong." In Re Knapper, 407 F.3d 573, 580 (3d Cir.2005). More recently, however, the court of appeals has cautioned that reliance on its pre-Exxon formulation of the Rooker-Feldman doctrine, and in particular the "inextricably intertwined" prong, may no longer be appropriate. See, e.g., Gary v. Braddock Cemetery, 517 F.3d 195, 200 n. 5 (3d Cir. 2008) (citations omitted); East Hill Synagogue v. City of Englewood, 240 Fed.Appx. 938, 940 n. 1 (3d Cir.2007) (noting that after Mobil, "[t]here is little reason to believe that inextricably intertwined' ... does anything more than state a conclusion or describe a claim that meets the requirements of Exxon.") (collecting decisions from other courts of appeals).
In 2010, the United States Court of Appeals for the Third Circuit rejected its pre-Exxon Mobil formulation of the Rooker-Feldman inquiry, and established the following test, based on the Supreme Court's holding in Exxon Mobil:
[T]here are four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff "complain[s] of injuries caused by [the] state-court judgments"; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.
Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir.2010) (quoting Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). Furthermore, in formulating the four-part test, the court of appeals determined that the phrase "inextricably intertwined" neither created an additional legal test nor expanded the scope of the doctrine beyond challenges to state-court judgments. Id. at 170. Rather, "[t]he purpose of the [phrase had been] to highlight that a challenge to a judgment is barred even if the claim forming the basis of the challenge was not raised in the state proceedings." Id. (alteration to original) (citing Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1141 (10th Cir.2006)). Hence, the court of appeals opined that the phrase is no more than "a descriptive label attached to claims that meet the requirements outlined in Exxon Mobil." Id. at 170 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 87 (2d Cir.2005)).
The court of appeals in Great Western found that the key to determining whether Rooker-Feldman barred a claim lies within the second and fourth requirements of the four-part test. 615 F.3d at 166. Essentially, *599 the second requirementplaintiff must complain of injuries caused by the state court judgmentis an inquiry into the source of the plaintiff's injury. Id. (citing Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir.2006)). The court of appeals offered the following illustration of a situation where the state court judgment itself was the source of the injury:
Suppose a state court, based purely on state law, terminates a father's parental rights and orders the state to take custody of his son. If the father sues in federal court for the return of his son on grounds that the state judgment violates his federal substantive due-process rights as a parent, he is complaining of an injury caused by the state judgment and seeking its reversal.
Id. at 166-67 (emphasis added) (citing Hoblock, 422 F.3d at 87-88). By contrast, the court of appeals noted that in the following example, the source of the injury was the defendants' actions (as opposed to the state court judgment), even though the federal lawsuit asks the federal court to deny a legal conclusion reached by the state court:
Suppose a plaintiff sues his employer in state court for violating both state anti-discrimination law and Title VII and loses. If the plaintiff then brings the same suit in federal court, he will be seeking a decision from the federal court that denies the state court's conclusion that the employer is not liable, but he will not be alleging injury from the state judgment. Instead, he will be alleging injury based on the employer's discrimination. The fact that the state court chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment.
Id. at 167 (citing Hoblock, 422 F.3d at 88). The court of appeals further explained that a useful guidepost in determining the source of the injury is the injury's timing, "that is, whether the injury complained of in federal court existed prior to the state-court proceedings and thus could not have been caused by' those proceedings." Id.
The fourth requirement of the four-part testthat the plaintiff must invite federal court review and rejection of the state court judgmentis closely related to the second requirement. Id. at 168 (quoting Bolden, 441 F.3d at 1143). The fourth requirement focuses, however, on "whether the federal plaintiff's claims will require appellate review of state-court decisions by the district court." Id. at 169. Moreover, it looks at the relief that is requested by the plaintiff.
In Great Western, the plaintiff claimed that due to an alleged conspiracy between the arbitrator, numerous attorneys, and state court judges, the state court's decisions had been predetermined before the hearing had taken place, violating its constitutional right to a fair hearing. Id. at 171. When addressing the second and fourth requirements, the court of appeals relied on the reasoning used by the United States Court of Appeals for the Seventh Circuit in two separate cases with similar claims. Id.
In Nesses v. Shepard, the Great Western court observed that "the federal plaintiff alleged that his losses in state court were the product of a conspiracy among the judges and lawyers." Id. (citing Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995)). But even though the Great Western court acknowledged that the federal plaintiff was, in a sense, attacking the ruling and decision of the state court, because the federal plaintiff "alleged that, `people involved in the decision violated some independent right of his, such as the right (if *600 it is a right) to be judged by a tribunal that is uncontaminated by politics, then he [could], without being blocked by the Rooker-Feldman doctrine, sue to vindicate that right.'" Id. (quoting Nesses, 68 F.3d at 1005) (emphasis in original). Therefore, as a part of the plaintiff's claim for damages, the Great Western court found that the plaintiff may show that the violation had caused the state court's decision to be adverse to him, thus doing him harm. Id. (citing Nesses, 68 F.3d at 1005).
Next, the Great Western court noted the reasoning of the court of appeals in Brokaw v. Weaver, 305 F.3d 660, 665 (7th Cir.2002). In that case, the plaintiff contended that her relatives and certain officials had "`conspiredprior to any judicial involvementto cause false child neglect proceedings to be filed, resulting in her removal from her home in violation of her ... substantive and procedural due process rights[.]'" Great Western, 615 F.3d at 172 (quoting Brokaw, 305 F.3d at 665). Whether the alleged conspiracy would have caused the plaintiff to suffer any damages, absent the state court order, was found to be irrelevant. Id. The Brokaw court held that Rooker-Feldman did not bar the plaintiff's claim, "`because her claim for damages [was] based on an alleged independent violation of her constitutional rights. It was this separate constitutional violation which caused the adverse state court decision.'" Id. (quoting Brokaw, 305 F.3d at 667).
In applying the reasoning of the Court of Appeals for the Seventh Circuit, the court in Great Western found that the federal plaintiff was "not merely contending that the state-court decisions were incorrect or that they were themselves in violation of the Constitution. Instead, [the federal plaintiff] claim[ed] that people involved in the decision violated some independent right,' that is, the right to an impartial forum." Id. (quoting Nesses, 68 F.3d at 1005). Because the federal plaintiff based its claim on an alleged independent violation of its constitutional rights, the Great Western court found that actions of the defendants and members of Pennsylvania judiciary, and not the state court decisions themselves, were the source of the federal plaintiff's purported injury. Id. (quoting Brokaw, 305 F.3d at 667).
Although the court of appeals' finding on the second requirement was enough to render Rooker-Feldman inapplicable to the case, the Great Western court examined the facts as applied to the fourth requirement as well. Id. at 173. The court of appeals found that "if [the federal plaintiff] could prove the existence of a conspiracy to reach a predetermined outcome in state court, it could recover nominal damages for this due process violation." Id. (citing Carey v. Piphus, 435 U.S. 247, 262-64, 98 S.Ct. 1042, 55 L.Ed.2d 252). Because the merits of the state court decisions were immaterial to the existence of the alleged violation, the court of appeals held that the federal plaintiff's "entitlement to such damages could be assessed without any analysis of the state-court judgments. To recover for more than the alleged due process violation, however, [the federal plaintiff] would have to show that the adverse state-court decisions were entered erroneously." Id. (citing Nesses, 68 F.3d at 1005).
Nevertheless, the Great Western court found that this is not the type of appellate review that is barred by Rooker-Feldman. Id. The relief requested by the plaintiffs in both Rooker and Feldman, who were seeking to have the state-court decisions undone or declared null and void by the federal courts, required effectively overruling the state-court judgments. Id. (citing Rooker, 263 U.S. at 414, 44 S.Ct. 149; Feldman, 460 U.S. at 468-69, 103 S.Ct. 1303). To differentiate, the federal plaintiff *601 in Great Western had sought relief in the form of damages, and hence, "may, `as part of [its] claim for damages,' show `that the [constitutional] violation caused the decision[s] to be adverse to [it] and thus did [it] harm.'" Id. (citing Nesses, 68 F.3d at 1005). Therefore, "while Great Western's claim for damages may require review of state-court judgments and even a conclusion that they were erroneous, those judgments would not have to be rejected or overruled for Great Western to prevail. Accordingly, the review and rejection requirement of the Rooker-Feldman doctrine [was] not met[.]" Id. (alteration to original).
In the instant matter, the Court finds that all four requirements of Great Western are met with regard to the claims against the Colorado Court seeking the following relief:
(1) declare Colorado State Court's judgment null and void and reverse.
(2) order that the names of the minor children be changed back to their birth names;
(3) order that D.G. IV, J.G., and S.G. be returned to Pennsylvania and that they be placed under the guardianship of their paternal grandparents;
(4) order that jurisdiction in all custody matters be remanded to the Westmoreland County Court and Westmoreland County CYS.
(5) order that an injunction issue to disqualify the Colorado Court and relieve it of any jurisdiction.
First, Father was the losing party in the custody action with regard to D.G. IV., J.G. and S.G., which was transferred to the Colorado Court in 2000. Father's parental rights to D.G. IV, J.G., and S.G. were subsequently terminated in the Colorado Court in 2004. Second, it is clear that the source of Plaintiff's alleged injuries in this federal action is the Colorado state court judgment terminating Father's parental rights. Father is now suing in federal court for the reinstitution of his parental rights, an award of custody to the paternal grandparents, and return of jurisdiction over the custody matters to the Pennsylvania state court. It is clear from Plaintiff's declaratory and injunctive requests for relief set out above that he is seeking reversal of the Colorado judgment. Plaintiff is, in essence, seeking appellate review of the Colorado state court judgment, and therefore, the Court finds that the source of Plaintiff's alleged injuries as to these claims seeking equitable relief is the state court judgment issued in the Colorado Court. The third requirement is also satisfied here because it is clear that the state court judgment entered by the Colorado Court was issued in 2004, well before the present litigation was commenced. Finally, the fourth requirement of Great Western is satisfied because, as discussed, Plaintiff specifically seeks an injunction barring enforcement of the Colorado state court judgment, the restoration of Father's parental rights, an award of custody to the paternal grandparents, which, if granted, would effectuate a reversal of the Colorado state court judgment. Accordingly, this Court lacks subject matter jurisdiction over the claims against the Colorado Court seeking the equitable relief set out above.
According to Great Western, however, Father's claims for violation of his federal constitutional rights and conspiracy for which he seeks monetary damages, are not barred by Rooker-Feldman. The source of Plaintiff's injuries as to these claims is not the Colorado state court judgment. Instead, the source of Plaintiff's alleged injuries are the alleged actions of Defendants in participating in the claimed conspiracy. Even though these injuries helped to cause the Colorado state court judgment, these claims are independent because they stemmed from the alleged *602 actions of Defendants, rather than from the judgment itself. Further, as to the fourth element of Great Western, although Father's claim for damages may require review of the Colorado state court judgment and even a conclusion that it was erroneous, the Colorado state court judgment would not have to be rejected or overruled for Father to prevail on his independent constitutional claims for monetary damages. Accordingly, the Rooker-Feldman doctrine does not bar Plaintiff's claims seeking monetary damages.
MOTION TO DISMISS PURSUANT TO 12(b)(6)
1. The State is not a person for purposes of §§ 1983, 1985 and 1986
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. To state a claim for relief under this provision, the Plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.1994) (emphasis added). Similarly, § 1985(3) and 1986 provide for actions against a person or persons.
The United States Supreme Court has determined that Congress did not intend for Section 1983 to overcome the sovereign immunity of states embodied in the Eleventh Amendment. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Therefore, states, as well as entities of the state, such as the District Court of La Plata County, are not "persons" who can be subject to liability under Section 1983. Id. at 71, 109 S.Ct. 2304. Consequently, Plaintiff's claims against the Colorado Court pursuant to §§ 1983, 1985(3), and 1986 must be dismissed as a matter of law.[4]
The Supreme Court has noted that where "suits against individual state officers [are] for prospective injunctive and declaratory relief to end an ongoing violation of federal law." Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir.2002) (citing MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 503 (3d Cir.2001)). This exception is commonly referred to as the doctrine of Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See Pa. Fed'n of Sportsmen's Clubs, 297 F.3d at 323. The Supreme Court has narrowly applied this exception, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and indeed, has declined to apply the exception to relief styled as prospective relief but which, in actuality, seeks compensation *603 for a past injury by a state official. Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985).
Here, Plaintiff's claims for declaratory and injunctive relief against the Colorado Court are barred because in actuality, the so-called prospective relief sought against it is not prospective at all. An examination of the injunctive and/or declaratory relief requested in the complaint reveals that five (5) of the requests for injunctive/declaratory relief arguably pertain to Judge Walker: 1) declare the Colorado Court's judgment null and void and reverse; 2) order that the names of the minor children be changed back to their birth names; 3) order that D.G. IV, J.G., and S.G. be returned to Pennsylvania and that they be placed under the guardianship of their paternal grandparents; 4) order that jurisdiction in all custody matters be remanded to the Westmoreland County Court and Westmoreland County Children and Youth Services; and 5) order that an injunction issue to disqualify the Colorado Court and relieve it of any jurisdiction. None of this relief would end an ongoing violation of federal law. These requests are purely an attempt by Father to have this Court review the prior decisions of the state court judges, which it is not empowered to do.[5] Likewise, Plaintiff's requests that this Court order a federal criminal investigation and the filing of federal criminal charges are a violation of the separation of powers provisions in the United States Constitution, and clearly outside its Article III powers. Therefore, the exception of Ex Parte Young is not applicable here and the Eleventh Amendment bars all of Plaintiff's claims against the Colorado Court.
2. Claims for Injunctive and Declaratory relief are barred by the Anti-Injunction Act
In light of the above, the Court will not address Defendant's arguments regarding the Anti-Injunction Act.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that Defendant District Court of La Plata County's Motion to Dismiss at ECF No. 194 be granted.
In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Federal Rule of Civil Procedure 72(b)(2), and Local Rule of Court 72.D.2., the parties are allowed fourteen (14) days from the date of service to file objections to this report and recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: June 3, 2011.
NOTES
[1] Father's original Complaint, received by the Clerk of Courts on January 11, 2008, contained a number of attachments. On October 17, 2008, Father filed an Amended Complaint (ECF No. 36), which is essentially the same as the original Complaint but without the attachments. For ease of reference, all citations to the Complaint in this Report and Recommendation are to ECF No. 36.
[2] Habeas corpus petitions are an exception to the jurisdictional bar of Rooker-Feldman. See Walker v. Horn, 385 F.3d 321, 329 n. 22 (3d Cir.2004) (citations omitted).
[3] The Rooker-Feldman doctrine applies to final decisions of lower state courts. Walker, 385 F.3d at 329 (citation omitted).
[4] The court of appeals in Phillips v. County of Allegheny has ruled that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would in inequitable or futile." 515 F.3d 224, 245 (3d Cir.2008). The Court in this matter is recommending dismissal with prejudice and is not granting leave to amend because it believes such amendment would be futile.
[5] Despite Plaintiff's argument to the contrary, the allegations of fact in the Amended Complaint do not support his contention that an ongoing violation of federal law exists. Father appears to be arguing that because the state court decisions have not been vacated or reversed, his due process rights continue to be violated and perpetuated by Defendants' alleged conspiracy to deprive him of his rights based on his race. The Amended Complaint, however, is completely devoid of any factual support of an ongoing violation of federal law. Father is attempting to bootstrap the effect of the state judges' previous rulings into an ongoing federal violation. This he cannot do.
| {
"pile_set_name": "FreeLaw"
} |
Filed 11/7/13 P. v. Galindo CA6
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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039721
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1263296)
v.
DAMIAN BUSTOS GALINDO,
Defendant and Appellant.
Defendant Damian Bustos Galindo appeals from a judgment of conviction entered
after he pleaded no contest to vehicle theft with a prior conviction (Veh. Code, § 10851,
subd. (a); Pen. Code, § 666.5) and delaying, resisting, and obstructing a peace officer
(Pen. Code, § 148, subd. (a)(1)). Defendant also admitted allegations that he suffered a
strike prior within the meaning of Penal Code sections 667, subdivisions (b) through (i)
and 1170.12 as well as a prison prior within the meaning of Penal Code section 667.5,
subdivision (b). After denying defendant’s motion to dismiss the prior strike allegation
pursuant to Penal Code section 1385, the trial court sentenced defendant to state prison
for four years.
I. Statement of Facts
At approximately 9:14 p.m. on November 6, 2012, officers were on routine patrol
near a house where parolees lived and drug activity occurred. The officers observed a
truck parked in front of the house. A records check revealed that the truck had been
reported stolen five days earlier. The officers conducted surveillance until three people,
including defendant, exited the house and entered the truck. The officers initiated a
felony stop on the truck and ordered the occupants out of the truck. Defendant exited the
truck. After he took a few steps, the officer ordered him to stop. Defendant, however,
ran across the light rail tracks and into oncoming traffic. Officers and a K-9 unit pursued
him and defendant was eventually apprehended. After conducting a search of his person,
an officer found marijuana. Since defendant was the driver of the stolen truck and he
matched the description of the individual who was seen stealing the truck, he was
arrested. During his interview with the officers at the county jail, defendant stated that he
ran from them because he was in possession of marijuana and in violation of probation.
He also stated that he borrowed the truck from a friend.
II. Discussion
Appointed appellate counsel has filed an opening brief which states the case and
the facts but raises no issues. Defendant was notified of his right to submit written
argument on his own behalf but has failed to avail himself of the opportunity. Pursuant
to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have
concluded that there are no arguable issues on appeal.
III. Disposition
The judgment is affirmed.
_____________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Grover, J.
| {
"pile_set_name": "FreeLaw"
} |
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 11-1975
_______________
RAMONE BORROME,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
_______________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Andrew Arthur
(No. A044-824-479)
_______________
Argued March 6, 2012
_______________
Before: SCIRICA, AMBRO,
and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 18, 2012)
Thomas M. Griffin, Esq. [ARGUED]
Surin & Griffin, P.C.
325 Chestnut Street, Suite 1305-P
Philadelphia, PA 19106
Counsel for Petitioner
Eric H. Holder, Jr.
Attorney General
Anthony C. Payne
Senior Litigation Counsel
Yedidya Cohen, Esq. [ARGUED]
Thomas W. Hussey, Esq.
Daniel I. Smulow, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
AMBRO, Circuit Judge
This immigration case hinges on the relationship
between prescription “drugs” and “controlled substances.”
The Federal Food, Drug, and Cosmetic Act (“FDCA”), 21
U.S.C. §§ 301-399d, prohibits the unlicensed wholesale
distribution of prescription “drugs” in interstate commerce.
2
See 21 U.S.C. §§ 331(t) & 353(e)(2)(A). Similarly, the
Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904,
bans the unauthorized distribution of “controlled substances.”
See 21 U.S.C. § 841(a). Some prescription “drugs” (like
Oxycontin) are also “controlled substances,” but many (like
Lipitor, Zithromax, and thousands of other common
medications) are not. Importantly, the FDCA’s wholesale
distribution provisions make no distinction between those
prescription “drugs” that are “controlled substances” and
those that are not.
With this background, we answer two questions. First,
is a conviction for violating the FDCA’s wholesale
distribution provisions an “aggravated felony” — specifically
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18)” — under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii)? Second, are these
FDCA provisions laws “relating to a controlled substance (as
defined in Section 802 of Title 21)” under 8 U.S.C.
§ 1227(a)(2)(B)(i)? Our answer to both questions is no.
Accordingly, we grant the petition for review, reverse, and
vacate the order of removal.
I. Background
Petitioner Ramone Borrome is a citizen of the
Dominican Republic, and since August 1996 has been a
lawful permanent resident of the United States. In May 2002,
a Special Agent with the United States Food and Drug
Administration (“FDA”) filed a criminal complaint against
him and two other men in federal court. The next month, a
grand jury returned a two-count indictment.
Count One charged the three defendants with having
“unlawfully, intentionally, and knowingly engaged in the
3
unauthorized wholesale distribution in interstate commerce of
prescription drugs in violation of [21 U.S.C. §§ 331(t) and
353(e)], to wit, [Borrome, and his two co-defendants]
distributed the prescription drugs Combivir, Diflucan,
Oxycontin, Serostim, Viagra, Zerit, [and] Zyprexa without
being licensed to do so.” 1 A.R. at 102 ¶ 1. Count Two
alleged a conspiracy. Significantly, the indictment did not
charge any of the three defendants with violating the CSA.
According to his judgment of conviction, Borrome pled guilty
to Count One while Count Two was dismissed on the
Government’s motion. 2 The District Court sentenced him to
four months’ imprisonment followed by four months’ home
confinement.
In June 2010, Borrome was served with a Notice to
Appear for immigration removal purposes. He filed a motion
to terminate, which the Immigration Judge (“IJ”) denied.
In a written opinion, the IJ found Borrome removable
under 8 U.S.C. §§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii) as
an alien convicted of an aggravated felony. The IJ concluded
that the “hypothetical federal felony test” required him to
compare the FDCA’s wholesale distribution provisions to the
CSA to determine whether Borrome’s FDCA conviction is
analogous to a felony under the CSA. He noted that the CSA
makes it a felony to distribute knowingly or intentionally a
1
These drugs are prescribed for people with the human
immunodeficiency virus (Combivir, Serostim, Zerit), fungal
infections (Diflucan), severe pain (Oxycontin), schizophrenia
(Zyprexa), and erectile dysfunction (Viagra). See The
National Center for Biotechnology Information,
http://www.ncbi.nlm.nih.gov/ (last visited July 17, 2012).
2
There is no plea agreement or plea colloquy transcript in
the administrative record.
4
controlled substance. See 21 U.S.C. § 841(a)(1) & (b)(1)(C).
Turning to Borrome’s indictment, he further noted that
Borrome pled guilty to distributing Oxycontin, which
contains the Schedule II controlled substance oxycodone. See
21 C.F.R. § 1308.12(b)(1)(xiii). (None of the other six
prescription “drugs” listed in Borrome’s indictment contains
“controlled substances.”) Thus, the IJ reasoned, “because
[Borrome’s] offense involved the unauthorized distribution of
a Schedule II controlled substance,” it is an aggravated felony
under 8 U.S.C. § 1101(a)(43)(B) pursuant to the “hypothetical
federal felony test.” A.R. at 40.
The IJ also found Borrome removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) as an alien convicted of violating any law
“relating to a controlled substance.” After reiterating the
reference in Borrome’s indictment to Oxycontin, the IJ
concluded that Borrome’s conviction “is plainly a violation of
a law relating to a controlled substance.” Id. at 42.
In December 2010, the IJ ordered Borrome removed to
the Dominican Republic. In March 2011, on the
Government’s motion, the Board of Immigration Appeals
(“BIA”) summarily affirmed the IJ’s decision without opinion
pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome timely
petitioned for review. Before his counsel could file a motion
to stay removal, he was removed from the United States.
II. Jurisdiction and Standard of Review
The IJ had jurisdiction over Borrome’s removal
proceedings under 8 U.S.C. § 1229a. The BIA had
jurisdiction to review the IJ’s order of removal and its
underlying denial of Borrome’s motion to terminate under 8
C.F.R. §§ 1003.1(b)(3) and 1240.15.
5
We generally have jurisdiction under 8 U.S.C. § 1252
to review final orders of removal from the BIA. But 8 U.S.C.
§ 1252(a)(2)(C) provides that “no court shall have jurisdiction
to review any final order of removal against an alien who is
removable” under, among other provisions, 8 U.S.C.
§ 1227(a)(2)(A)(iii) for having been convicted of an
“aggravated felony” or 8 U.S.C. § 1227(a)(2)(B)(i) for having
been convicted of violating a law “relating to a controlled
substance.” We have jurisdiction, however, to determine our
jurisdiction. In other words, we have jurisdiction to
determine whether the necessary jurisdiction-stripping facts
are present in a particular case, specifically (1) whether the
petitioner is an alien and (2) whether he has been convicted of
one of the enumerated offenses. See Papageorgiou v.
Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005); Valansi v.
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). Furthermore,
nothing in 8 U.S.C. § 1252(a)(2)(C) precludes our review of
questions of law presented in a petition for review. See 8
U.S.C. § 1252(a)(2)(D).
“When the BIA affirms an IJ’s decision without
opinion, we review the IJ’s decision as the final agency
determination.” Konan v. Att’y Gen., 432 F.3d 497, 500 (3d
Cir. 2005). We review de novo, without affording the
Attorney General deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc. 467 U.S. 837
(1984), the purely legal questions of whether a violation of
particular federal criminal statutes is an “aggravated felony”
and whether those statutes are laws “relating to a controlled
substance.” See Denis v. Att’y Gen., 633 F.3d 201, 207-09
(3d Cir. 2011); Bobb. v. Att’y Gen., 458 F.3d 213, 217 n.4 (3d
Cir. 2006); Valansi, 278 F.3d at 207-08. 3
3
“We have also previously questioned whether a BIA
decision is entitled to deference when, as here, the BIA has
6
III. Analysis
A. Removability Under 8 U.S.C. §§ 1101(a)(43)(B) and
1227(a)(2)(A)(iii): Conviction for Committing an
“Aggravated Felony”
First, we must determine whether — as the IJ
concluded — Borrome’s conviction for violating the FDCA’s
wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &
353(e)(2)(A), is an “aggravated felony” under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii).
“Any alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). With respect to a controlled substances
offense, “aggravated felony” means “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21)
[the definitional section of the CSA], including a drug
trafficking crime (as defined in section 924(c) of Title 18).” 8
U.S.C. § 1101(a)(43)(B). “[T]he term ‘drug trafficking
crime’ means any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
affirmed without opinion the decision of the IJ pursuant to 8
C.F.R. § 1003.1(e)(4).” Ng v. Att’y Gen., 436 F.3d 392, 395
n.4 (3d Cir. 2006); see also Smriko v. Ashcroft, 387 F.3d 279,
289 n.6 (3d Cir. 2004) (“[I]t would seem to be, at the very
least, an open question as to whether an IJ’s decision affirmed
through the streamlining process would be entitled to
Chevron deference . . . [D]eferring to the reasoning of an IJ
from which the BIA would be free to depart in other cases
would seem highly problematic.”); Singh v. Att’y Gen., 383
F.3d 144, 152 (3d Cir. 2004) (“[T]he BIA, by affirming
without opinion, gave no considered and authoritative
agency-wide interpretation of the statute . . . .”).
7
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46,” which includes the maritime
controlled substances laws. 18 U.S.C. § 924(c)(2).
We have held, however, that in addition to a federal
felony conviction for violating any of § 924(c)(2)’s three
statutes, a state controlled substances conviction may also
qualify as an “aggravated felony” under § 1101(a)(43)(B).
When presented with such a conviction, we have applied two
independent tests to determine whether the conviction is an
“aggravated felony”: the “hypothetical federal felony” test
and the “illicit trafficking element” test. See, e.g., Evanson v.
Att’y Gen., 550 F.3d 284, 288-90 (3d Cir. 2008); Garcia v.
Att’y Gen., 462 F.3d 287, 291 (3d Cir. 2006); Gerbier v.
Holmes, 280 F.3d 297, 313 (3d Cir. 2002). “Under the
hypothetical federal felony route, we compare the offense of
conviction to the federal Controlled Substances Act to
determine if it is analogous to an offense under that Act.”
Evanson, 550 F.3d at 289. “Under the illicit trafficking
element test, a state felony drug conviction constitutes an
aggravated felony if it contains a trafficking element.” Id.
When applying either the “hypothetical federal felony”
test or the “illicit trafficking element” test under
§ 1101(a)(43)(B), “and in making aggravated felony
determinations in general,” we presumptively start our
analysis by applying the “formal categorical approach.”
Garcia, 462 F.3d at 291. Under this approach, we “‘must
look only to the statutory definitions of the prior offenses,’
and may not ‘consider other evidence concerning the
defendant’s prior crimes,’ including . . . ‘the particular facts
underlying [a] conviction[].’” Id. (quoting Singh, 383 F.3d at
147-48) (quoting Taylor v. United States, 495 U.S. 575, 600
(1990))). There are two instances where we may depart from
the formal categorical approach when conducting an
aggravated felony analysis: (1) when “[c]onfronted with a
8
disjunctive statute of conviction, one in which there are
alternative elements, . . . to determine which of the alternative
elements was the actual basis for the underlying conviction,”
Evanson, 550 F.3d at 291; see also Garcia, 462 F.3d at 292;
Singh, 383 F.3d at 162-63; and (2) when “the language of a
particular subsection of § 1101(a)(43) — the aggravated
felony enumerating statute — ‘invites inquiry into the
underlying facts of the case.’” Evanson, 550 F.3d at 291-92
(quoting Nijhawan v. Att’y Gen., 523 F.3d 387, 393 (3d Cir.
2008)).
i. Can the “Hypothetical Federal Felony” Test Apply
to a Conviction for Violating Federal Law?
As a preliminary matter, we must decide whether the
“hypothetical federal felony” test can apply to a conviction
for violating a federal law, like the FDCA, that is not one of
the three federal controlled substances laws enumerated in
§ 924(c)(2) and incorporated in § 1101(a)(43)(B). We hold
that it can. 4
4
The Government does not defend the IJ’s aggravated felony
analysis. Instead, it asks that we remand this case to the BIA
to give it “an opportunity to re-consider the immigration
judge’s determination that Mr. Borrome is removable as an
aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii)” if we
conclude that he is not removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) for having been convicted of a law
“relating to a controlled substance.” Gov. Br. at 17.
According to the Government, a remand would give the BIA
“an opportunity to re-consider the [IJ’s] determination that
the ‘hypothetical federal felony’ approach applies in the
current situation where the statute of conviction, the FDCA,
was neither a state statute nor one of the three statutes
9
As noted, § 1101(a)(43)(B) incorporates § 924(c)(2),
which defines a “drug trafficking crime” as “any felony
punishable under” the CSA, the Controlled Substances
Import and Export Act, or the maritime controlled substances
laws. 18 U.S.C. § 924(c)(2) (emphasis added). In this
statute, “Congress referred to felonies ‘punishable under[,]’
not ‘convictions obtained under[,]’” the three enumerated
statutes. Gerbier, 280 F.3d at 204 (quoting Matter of Barrett,
20 I. & N. 171, 175 (BIA 1990)). Therefore, § 924(c)(2) does
not require an actual conviction under one of its three laws.
Id. A conviction that is hypothetically punishable as a felony
under one of § 924(c)(2)’s three statutes can also qualify as a
“drug trafficking crime.” Id. at 305, 312.
enumerated in 18 U.S.C. § 924 (c)(2).” Id. at 17 n.9. It
would also give the BIA “an opportunity to re-consider the
application of the categorical approach to the aggravated
felony determination in this case.” Id.
We decline the Government’s request. When Borrome
appealed the IJ’s ruling to the BIA, the Government filed a
motion for summary affirmance, claiming (among other
things) that “the result reached in the decision under review is
correct . . . and that the issues on appeal are squarely
controlled by existing precedent and do not involve the
application of precedent to . . . novel facts.” A.R. at 19. The
BIA obliged. Now the Government is singing a different
tune. It gives no good reason why the BIA should have a
second chance to consider the issues raised on this appeal.
The BIA had the opportunity to consider the issues and, at the
Government’s insistence, chose not to do so.
10
Thus far the BIA and our Court have applied this
“hypothetical federal felony” test only to convictions for
violating state controlled substances laws. See, e.g., Evanson,
550 F.3d at 289-293; Garcia, 462 F.3d at 292-93; Gerbier,
280 F.3d at 308-11; Matter of Davis, 20 I. & N. Dec. 536, 541
(BIA 1992). Ordinarily when an alien is convicted of
violating a federal controlled substances law, he is convicted
under the CSA. In those cases, there is no need for the
hypothetical federal felony test because § 924(c)(2) makes an
actual federal felony conviction under the CSA a “drug
trafficking crime,” and thus, via § 1101(a)(43)(B), an
“aggravated felony.” But in this case the Government argues
that the FDCA’s wholesale distribution laws create the same
bases for removability as § 924(c)(2)’s three controlled
substances laws. 5
Notwithstanding the unusual circumstances of this
case, we conclude that the “hypothetical federal felony” test
can apply to a conviction for violating a federal law other
than those enumerated in § 924(c)(2). There is nothing in the
text of either § 1101(a)(43)(B) or § 924(c)(2) that limits
application of the “hypothetical federal felony” test to state
controlled substances convictions. In fact, § 1101(a)(43)
specifically indicates that the term “aggravated felony”
applies to an offense “whether in violation of Federal or State
law.” When applying the test, the key inquiry is simply
whether the alien’s conviction is hypothetically punishable as
a felony under any of the three controlled substances laws
listed in § 924(c)(2).
5
We have found no precedent for using a conviction under 21
U.S.C. §§ 331(t) and 353(e)(2)(A) as a basis for removability.
11
ii. Does Borrome’s FDCA Conviction Meet the
“Hypothetical Federal Felony” Test?
Having determined that the “hypothetical federal
felony” test can apply in this case, we turn to whether it is
met. To do so, we first consider whether the presumption in
favor of the categorical approach applies to our analysis. It is
well established that the aggravated felony enumerating
statute at issue here, § 1103(a)(43(B), does not permit
departure from the categorical approach nor does it invite
inquiry into the underlying facts of a conviction. See
Evanson, 550 F.3d. at 292; Garcia, 462 F.3d at 292. If we
were to depart from the categorical approach, we would have
to find justification for that departure in Borrome’s statutes of
conviction. We conclude, however, that the FDCA’s
wholesale distribution statutes, 21 U.S.C. §§ 331(t) and
353(e)(2)(A), do not permit departure from the formal
categorical approach because they are not “disjunctive”
statutes that define distinct offenses. They are instead a
single offense that is not categorically “punishable under” any
of § 924(c)(2)’s three controlled substances statutes.
Therefore, a conviction under these FDCA provisions fails
the “hypothetical federal felony” test.
We begin by unraveling what Borrome’s statutes of
conviction, 21 U.S.C. §§ 331(t) and 353(e), actually prohibit.
In pertinent part, § 331(t) prohibits “the distribution of drugs
in violation of section 353(e) of this title.” 6 Section
6
A “drug” means
(A) articles recognized in the
official United States
Pharmacopeia, official
Homeopathic Pharmacopeia of
12
353(e)(2)(A), in turn, provides that “[n]o person may engage
in the wholesale distribution in interstate commerce of drugs
subject to subsection (b) of this section in a State unless such
person is licensed by the State in accordance with the
guidelines issued under subparagraph (B).” “The term
‘wholesale distribution’ means distribution of drugs subject to
subsection (b) of this section to other than the consumer or
patient,” with some exceptions not relevant here. 21 U.S.C.
§ 353(e)(3)(B). Section 353(b)(1) — the relevant part of the
“subsection (b) of this section” to which §§ 353(e)(2)(A) and
353(e)(3)(B) refer — subjects to certain prescription
requirements
[a] drug intended for use by a man
which (A) because of its toxicity
or other potentiality for harmful
effect, or the method of its use, or
the United States, or official
National Formulary, or any
supplement to any of them; and
(B) articles intended for use in the
diagnosis, cure, mitigation,
treatment, or prevention of
disease in man or other animals;
and (C) articles (other than food)
intended to affect the structure or
any function of the body of man
or other animals; and (D) articles
intended for use as a component
of any article specified in clause
(A), (B), or (C).
21 U.S.C. § 321(g)(1).
13
the collateral measures necessary
to its use, is not safe for use
except under the supervision of a
practitioner licensed by law to
administer such drug; or (B) is
limited by an approved
application under section 355 of
this title to use under the
professional supervision of a
practitioner licensed by law to
administer such drug.
For simplicity, these are called prescription drugs.
Section 353(b)(1) does not provide a list of specific
drugs subject to its prescription requirements. Whether a
drug is a prescription drug by virtue of § 353(b)(1)(A) is a
question of fact for the jury. See United States v. Munoz, 430
F.3d 1357, 1367 (11th Cir. 2005). The FDA does, however,
publish in what is colloquially known as the “Orange Book” a
list of what are prescription drugs by virtue of § 353(b)(1)(B)
because they are “limited by an approved application under
section 355 of [title 21] to use under the professional
supervision of a practitioner licensed by law to administer
such drug.” See U.S. Food & Drug Admin., U.S. Dep’t
of Health & Human Servs., Approved Drug Products
with Therapeutic Equivalence Evaluations 3-1 to 3-424
(32d ed. 2012), available at
http://www.fda.gov/downloads/Drugs/DevelopmentApproval
Process/UCM071436.pdf.
The term “controlled substance” appears nowhere in
§§ 331(t) and 353(e). A “controlled substance” is defined in
the CSA to mean “a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V of part B of
this subchapter.” 21 U.S.C. § 802(6). A list of “controlled
14
substances” is provided in 21 U.S.C. § 812 and supplemented
by 21 C.F.R. §§ 1308.11–.15. The only way to discern an
overlap between prescription drugs and controlled substances
is to compare the list of prescription drugs in the FDA’s
Orange Book and the list of controlled substances in the CSA
and its corresponding regulations. When doing so, it is clear
that, while some prescription drugs contain chemicals that are
also regulated as “controlled substances” under the CSA,
many do not. For example, Oxycontin — one of the seven
drugs listed in Borrome’s indictment — is a prescription
drug, see Approved Drug Products with Therapeutic
Equivalence Evaluations, supra, at 3-324, and it contains the
“controlled substance” oxycodone, see 21 C.F.R.
§ 1308.12(b)(1)(xiii). In contrast, Viagra — another of the
seven drugs listed in Borrome’s indictment — is a
prescription drug, see Approved Drug Products with
Therapeutic Equivalence Evaluations at 3-371, but it does not
contain a “controlled substance.”
Although some prescription drugs do contain
controlled substances, §§ 331(t) and 353(e)(2)(A) make no
distinction between convictions involving prescriptions drugs
that do contain controlled substances and those that do not.
In other words, under §§ 331(t) and 353(e)(2)(A), a
conviction for the unlicensed wholesale distribution of Viagra
is no different than a conviction for the unlicensed wholesale
distribution of Oxycontin.
This is the pivot point for our “hypothetical federal
felony” analysis. When making aggravated felony
determinations under § 1101(a)(43)(B), “[w]e must rely only
on ‘what the convicting court must necessarily have found to
support the conviction.’” Jeune v. Att’y Gen., 476 F.3d 199,
205 (3d Cir. 2007) (quoting Steele v. Blackman, 236 F.3d
130, 135 (3d Cir. 2001)). When Borrome pled guilty to
violating the FDCA’s wholesale distribution provisions, the
15
convicting court did not necessarily have to find whether the
prescriptions drugs involved also contained controlled
substances. Such a finding would be irrelevant under
§§ 331(t) and 353(e)(2)(A) because those statutes define a
single offense, not separate and distinct offenses. Therefore,
§§ 331(t) and 353(e)(2)(A) do not permit departure from the
formal categorical approach.
When we apply the categorical approach, we see
daylight between the elements of a CSA controlled
substances distribution conviction and an FDCA prescription
drug distribution conviction. Under the CSA, it is unlawful to
“knowingly or intentionally . . . distribute . . . a controlled
substance.” 21 U.S.C. § 841(a)(1). Under the FDCA, it is
unlawful to “engage in the wholesale distribution in interstate
commerce of [prescription] drugs” without a proper license.
21 U.S.C. § 353(e)(2)(A). As our discussion above
demonstrates, prescription drugs and controlled substances do
not always go hand-in-hand. If the Government successfully
proves the elements for a conviction under 21 U.S.C.
§ 353(e)(2)(A), it does not necessarily prove the elements for
a conviction under 21 U.S.C. § 841(a)(1). Because a
conviction under the FDCA for the unlicensed wholesale
distribution of prescription drugs is not categorically
“punishable under” the CSA or § 924(c)(2)’s other controlled
substances laws, Borrome’s conviction fails the “hypothetical
federal felony test.”
iii. The “Illicit Trafficking” Element Test
Neither the Government before us, nor the IJ, contends
that Borrome’s conviction meets the “illicit trafficking
element” test. That test requires that a felony contain a
“trafficking element,” meaning “the unlawful trading or
dealing of a controlled substance.” Jeune, 476 F.3d at 202
(quoting Gerbier, 280 F.3d at 305). Because, as discussed
16
above, §§ 331(t) and 353(e)(2)(A) do not permit departure
from the categorical approach and they do not require the
distribution of a controlled substance, they must necessarily
fail the “illicit trafficking element” test as well.
B. Removability Under 8 U.S.C. § 1227(a)(2)(B)(i):
Conviction for Violating Any Law “Relating to a
Controlled Substance”
Next, we consider whether Borrome was removable
under 8 U.S.C. § 1227(a)(2)(B)(i). That section of the
Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-
1537, provides that:
Any alien who at any time after
admission has been convicted of a
violation of (or a conspiracy or
attempt to violate) any law or
regulation of a State, the United
States, or a foreign country
relating to a controlled substance
(as defined in section 802 of Title
21), other than a single offense
involving possession for one’s
own use of 30 grams or less of
marijuana, is deportable.
(Emphases added.)
Unless an alien claims that the basis of his alleged
removability is “a single offense involving possession for
one’s own use of 30 grams or less of marijuana,”
§ 1227(a)(2)(B)(i) does not ask courts to scour an alien’s
indictment and sniff out a controlled substance, or otherwise
to look to the underlying facts of an alien’s conviction, to
determine whether the alien is removable. Such an inquiry
17
would be irrelevant. The important statutory phrase is
“relating to a controlled substance,” and it modifies “law or
regulation.” See Mielewczyk v. Holder, 575 F.3d 992, 994
(9th Cir. 2009); see also Mizrahi v. Gonzales, 492 F.3d 156,
159 (2d Cir. 2007) (noting that 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), which is the inadmissibility
counterpart to 8 U.S.C. § 1227(a)(2)(B)(i), “applies only if
the ‘law or regulation’ violated relates to controlled
substances”). An analysis of the laws or regulations of
conviction is required. Therefore, our task is to determine
whether the FDCA’s wholesale distribution provisions, 21
U.S.C. §§ 331(t) and 353(e)(2)(A), are laws “relating to a
controlled substance,” not (as the IJ seems to have believed)
whether the facts of Borrome’s conviction “relat[e] to a
controlled substance.” 7
The INA does not define the phrase “relating to.” But
the BIA has interpreted it expansively: “[t]he ‘relating to’
concept has a broad ordinary meaning, namely, ‘to stand in
some relation; to have bearing or concern; to pertain; refer; to
bring into association with or connection with.”’ Matter of
Espinoza, 25 I. & N. Dec. 118, 120 (BIA 2009) (quoting
Black’s Law Dictionary 1158 (5th ed. 1979) (other quotation
marks omitted)); see also Matter of Beltran, 20 I. & N. Dec.
521, 526 (BIA 1992) (“The phrase ‘relating to’ . . . has long
been construed to have broad coverage.”). The Supreme
Court, when interpreting the phrase “relating to” in the
Airline Deregulation Act, has also adopted the broad Black’s
Law Dictionary definition. See Morales v. Trans World
7
As discussed above, the FDCA wholesale distribution
provisions are non-divisible statutes that define a single
offense. Therefore, we apply the formal categorical approach
to determine whether they are laws “relating to a controlled
substance.”
18
Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting Black’s Law
Dictionary 1158 (5th ed. 1979)).
We too have explained, in the context of another
provision of the INA, that the phrase “relating to” is “to be
read expansively[,] and ‘must not be strictly confined to its
narrowest meaning.’” Denis, 633 F.3d at 209 (quoting
Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001)). As we
have said, “[t]he term ‘relate’ means ‘to show or establish a
logical or causal connection between.’” Bobb, 458 F.3d at
219 (quoting Webster’s Third New International Dictionary
(Unabridged) 1916 (1991)). Other Courts of Appeals have
given the phrase similarly broad readings. See Mielewczyk,
575 F.3d at 994-95 (quoting Webster’s dictionary definition
with approval); Desai v. Mukasey, 520 F.3d 762, 764 (7th Cir.
2008) (same).
As the breadth of the phrase “relating to” suggests, a
law need not require for its violation the actual involvement
of a controlled substance in order to “relat[e] to” a controlled
substance. “If Congress wanted a one-to-one correspondence
between the [laws of conviction] and the federal CSA, it
would have used a word like ‘involving’ instead of ‘relating
to,’ or it could have written the statute the way that it wrote
§ 1101(a)(43)(B) [the aggravated felony controlled
substances statute].” Desai, 520 F.3d at 766. 8
In this vein, the BIA and several of our sister Courts of
Appeals have held that a law prohibiting the possession or use
of drug paraphernalia is a law “relating to a controlled
substance.” See Matter of Espinoza, 25 I. & N. Dec. at 118;
8
For example, to achieve this correspondence, Congress
could have made removable any alien convicted of an offense
“involving a controlled substance (as defined in section 802
of Title 21)” or an offense “punishable under” the CSA.
19
see also Alvarez-Acosta v. Att’y Gen., 524 F.3d 1191, 1196
(11th Cir. 2008); Escobar Barraza v. Mukasey, 519 F.3d 388,
390-91 (7th Cir. 2008); Luu-Le v. I.N.S, 224 F.3d 911, 914-16
(9th Cir. 2000). Paraphernalia statutes relate to controlled
substances, even though they prohibit the possession of
instruments rather than controlled substances themselves,
because “the possession of an item intentionally used for
manufacturing, using, testing, or enhancing the effect of a
controlled substance necessarily pertains to a controlled
substance.” Espinoza, 25 I. & N. Dec. at 120. The Ninth
Circuit has reached this conclusion notwithstanding that the
definition of the term “drug” as used in the California drug
paraphernalia statute “does not map perfectly” with the
definition of “controlled substance” under the CSA. See Luu-
Le, 224 F.3d at 915.
Similarly, the Seventh Circuit has held that a statute
prohibiting the unlawful delivery of a “Look-Alike
Substance” is a law “relating to a controlled substance.”
Desai, 520 F.3d at 764-66. The defendant in that case was
convicted of selling chocolates purporting to contain, but not
actually containing, the hallucinogenic controlled substance
Psilocybin. Id. at 763. He was charged under Illinois law
with the unlawful delivery of a “Look-Alike Substance,”
defined as a substance which (1) by its identifying physical
characteristics “would lead a reasonable person to believe that
the substance is a controlled substance, or (2) is expressly or
impliedly represented to be a controlled substance or is
distributed under circumstances which would lead a
reasonable person to believe that the substance is a controlled
substance.” Id. at 764-65 (quoting 720 Ill. Comp. Stat.
570/102(y)). The Court explained that the state law is one
“related to” a federal controlled substance because
distributing something that would lead one to believe it
contained a federal controlled substance brings the state law
20
“into association with a federal controlled substance.” Id. at
765.
It is the fact that there is a relation
between the Look-Alike and the
controlled substance that justifies
making the distribution of the
Look-Alike illegal. To put it more
bluntly, the idea of distributing a
“Psilocybin Look-Alike” would
not even exist as a legal (or
linguistic) concept without its
connection to, or relationship
with, Psilocybin. The simulacrum
and the thing itself are always
connected.
Id. Therefore, according to the Seventh Circuit, the law
relates to a controlled substance, notwithstanding that a
“Look-Alike” itself is not a “controlled substance,” as there is
“enough of a relation to the federal controlled substance to
warrant removal from the United States for violating the
law.” Id. at 766.
The drug paraphernalia cases and the Seventh Circuit’s
decision in Desai convince us that the phrase “any law . . .
relating to a controlled substance” reaches those laws that do
not require the actual involvement of a controlled substance
for a conviction. But we are equally convinced that a law
does not automatically come within the ambit of that phrase
simply because a conviction may involve a controlled
substance. Another section of the FDCA provides a reductio
ad absurdum.
Under 21 U.S.C. § 353(d)(3)(B), “[d]rug
manufacturers or authorized distributors of record shall store
21
drug samples under conditions that will maintain their
stability, integrity, and effectiveness and will assure that the
drug samples will be free of contamination, deterioration, and
adulteration” when distributing the drug samples (unless they
use mail or common carrier). Distributing drug samples in
violation of § 353(d), or otherwise failing to comply with its
requirements, is punishable by not more than one year
imprisonment, a $1,000 fine, or both. See 21 U.S.C.
§§ 331(t) & 333(a). If we were to give the phrase “relating
to” a boundless interpretation, we might conclude that
§ 353(d)(3)(B) is a law “relating to” a controlled substance
because it regulates some chemicals that also happen to
contain “controlled substances.” It would be difficult to
accept, however, that a non-citizen authorized distributor who
fails to transport a sample of Oxycontin under the proper
temperature or in the proper container, in violation of 21
U.S.C. § 353(d)(3)(B), could be deported from the United
States simply because Oxycontin — in addition to being a
prescription “drug”— also happens to contain a “controlled
substance.” The coincidental possibility that a controlled
substance might be involved with the violation of a law or
regulation is not enough to make that law or regulation one
“relating to a controlled substance” for deportability purposes
under § 1227(a)(2)(B)(i).
Though we must interpret the phrase “relating to a
controlled substance” broadly, that phrase must have limits,
lest it be bent beyond all logical meaning. See Denis, 633
F.3d at 212 (noting that we must interpret the phrase
“‘relating to’ broadly, seeking a logical or causal
connection”). We believe that bringing the FDCA’s
wholesale distribution provisions within the scope of that
phrase would extend it beyond its breaking point for two
related reasons. First, the connection between §§ 331(t),
353(e)(2)(A), and illicit controlled substance-related activity,
is too attenuated. Second, §§ 331(t) and 353(e)(2)(A)
22
criminalize a substantial swath of conduct with no nexus to
controlled substances as defined in 21 U.S.C. § 802.
In this case there is undeniably a connection between
the FDCA wholesale distribution provisions and illicit
controlled substance-related activity: the FDCA prohibits the
unlicensed wholesale distribution of prescription “drugs,” the
CSA in turn criminalizes the unauthorized distribution of
“controlled substances,” and some prescription “drugs” are
also “controlled substances.” But that nexus, though simply
stated, is not at all evident from the face of §§ 331(t) and
353(e) and only emerges after a journey through other laws,
regulations, and governmental publications. To repeat,
§§ 331(t) and 353(e) do not use the term “controlled
substance” nor do they list specific prescription drugs that are
in fact controlled substances. To see the connection between
prescription drugs and controlled substances, we must
rummage through the 400-plus page “Prescription Drug
Product List” in the FDA’s Orange Book, see Approved Drug
Products with Therapeutic Equivalence Evaluations, supra at
3-1 to 3-424, and then hunt for a match in the roughly 100
pages of schedules of controlled substances in the Code of
Federal Regulations, see 21 C.F.R. §§ 1308.11–.15. Even if
we complete this odyssey, the fruits of our labor are for
naught. It is inconsequential under §§ 331(t) and
353(e)(2)(A) if the prescription drugs at issue are also
controlled substances “(as defined in section 802 of Title
21).” Thus, the “relationship” between §§ 331(t) and
353(e)(2)(A) and “controlled substances” is a mere
coincidence devoid of any legal significance under the
FDCA.
Moreover, the FDCA wholesale distribution
provisions, which (to repeat) define a single offense and not
distinct and separate offenses, prohibit a wide range of
behavior completely unconnected to controlled substances.
23
The statutes are blind to whether a particular prosecution
involves highly addictive prescription painkillers, or
relatively benign prescription shampoos, topical creams, or
eye drops. In this regard, we believe §§ 331(t) and
353(e)(2)(A) to be analogous to a law criminalizing the
receipt of stolen property. In Pennsylvania, for example, a
person may be convicted of theft if he intentionally receives
property knowing that it has been stolen. See, e.g., Pa. C.S.A.
§ 3925(a). Whether that stolen property includes Oxycontin
or cotton candy is inconsequential under the statute. Like
§§ 331(t) and 353(e)(2)(A), the Pennsylvania receipt-of-
stolen-property statute reaches countless activities that are
completely unconnected to controlled substances. Classifying
such a law as one “relating to a controlled substance” would
stretch too far the bounds of the phrase “relating to.”
* * * * *
We hold that (1) a conviction for violating the FDCA’s
wholesale distribution provisions, see 21 U.S.C. §§ 331(t) &
353(e)(2)(A), is not an “aggravated felony” — specifically
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18)” — under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), and (2) the
FDCA’s wholesale distribution provisions are not laws
“relating to a controlled substance (as defined in Section 802
of Title 21)” under 8 U.S.C. § 1227(a)(2)(B)(i). 9
9
We note that our holding today should have very little effect
on the vast majority of aliens convicted in federal court for
violating federal controlled substances laws. Inexplicably,
Borrome was not charged with violating the CSA, even
though one of the seven prescription drugs listed in his
indictment was a controlled substance. If he had been
24
Accordingly, we grant the petition for review, reverse, and
vacate the order of removal.
convicted of violating the CSA, he almost certainly would be
removable.
25
| {
"pile_set_name": "FreeLaw"
} |
723 S.E.2d 174 (2012)
STATE
v.
DONG JIN KIM.
No. COA11-963.
Court of Appeals of North Carolina.
Filed April 3, 2012.
Case Reported Without Published Opinion
No Error.
| {
"pile_set_name": "FreeLaw"
} |
420 F.2d 495
73 L.R.R.M. (BNA) 2218
TONKIN CORP. OF CALIFORNIA, d/b/a Seven-Up Bottling Co. ofSacramento, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 23112.
United States Court of Appeals Ninth Circuit.
Dec. 30, 1969.
M. B. Jackson (argued), Charles McKenney, of Hodge, Jackson, Kumler & Croskey, Los Angeles, Cal., for appellant.
Michael F. Rosenblum (argued), Elliott Moore, Atty. N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., LeProhn & LeProhn, San Francisco, Cal., Roy O. Hoffman, Dir. N.L.R.B., San Francisco, Cal., for appellee.
Before BARNES, BROWNING and WRIGHT, Circuit Judges.
BARNES, Circuit Judge:
1
On January 15, and April 8, 1965, petitioner was charged by the Chauffeurs, Teamsters & Helpers Local No. 150 of the International Brotherhood of Teamsters, et al. with violation of sections 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (29 U.S.C. 158(a) et seq.), which define unfair labor practices. On May 25, 1965, a Trial Examiner of the National Labor Relations Board found violations of section 8(a)(1), (2) and (5) of the Act (C.T. 23-41), but deemed it unnecessary to pass on the allegation that section 8(a)(3) had been violated. A cease and desist order against further violations and other remedial relief was granted.
2
Petitioner took exception to the findings of the Trial Examiner, as did the General Counsel for the Board. The Board reviewed the case and adopted the conclusions of the Trial Examiner except that it found that section 8(a)(3) of the Act had been violated. It modified the earlier order of the Trial Examiner accordingly.
3
Tonkin filed this petition for review under section 10(f) (29 U.S.C. 160(f) of the Act and the Board cross-petitioned for enforcement of its order under section 10(e) (29 U.S.C. 160(e)). Our jurisdiction rests upon section 10(f) of the Act. We enforce the Board's order.
4
This is not the first time that labor disputes have brought these parties before this court. The events leading up to the present difficulty began in March 1963 when Tonkin Corporation, acting through its president, illegally locked out its employees in violation of 8(a)(1), (2), and (3) of the Act in an attempt 'to prevent its employees from having a free choice in determining its bargaining representatives.' Tonkin Corp. of California v. NLRB, 392 F.2d 141, 145 (9th Cir. 1968). It had previously been determined by the Board, with the subsequent approval of this court, that an employee of Tonkin, (one Barwise) had been discharged in violation of 8(a)(1), (3) of the Act for engaging in solicitation for the Teamster's Union. NLRB v. Tonkin Corp. of California, 352 F.2d 509, 511 (9th Cir. 1965).
5
The matter presently before us cannot be looked upon as though these previous cases did not exist. There was common motivation for both of these actions. It was found by the Board and affirmed by this court that petitioner had attempted to discourage employees from selecting Local 150 of the International Brotherhood of Teamsters as their bargaining agent and to encourage their continued affiliation with the independent Sacramento Seven-Up Employees' Union (herein 'independent').
6
The alleged illegal activities giving rise to the instant case occurred a year and a half later than the above mentioned matters. The general factual background of the case is not in issue. Specifically, it is undisputed that numerous conversations took place between management personnel and employees of Tonkin during this period (late 1964 and early 1965); that Tonkin attempted to institute a radically different distribution system (Pet. Br. 30-43); that ten of Tonkin's twelve distribution personnel were discharged for their refusal to participate in the revised distribution program (Pet. Br. 47); and, finally, that Tonkin continued to withhold union dues for the Independent without contractual authority. (Pet. Br. 69)
7
After four days of hearings in August, 1965, during which extensive testimony was taken from all parties involved, the Trial Examiner reached the following conclusions:
8
'5. By refusing on and after December 16, 1964, to recognize and bargain with the Union, and by unilaterally changing the status of its driver-employees to distributors, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act.1
9
'6. By urging its employees to form an independent union and by checking off dues without any contractual support therefor in behalf of Sacramento 7-Up Employees' Union Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act.
10
'7. By terminating * * * Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
11
'8. By the foregoing conduct, by interrogating employees concerning their union activities, by threatening to withdraw recognition of the Union after one year if certified, by giving employees the impression that union meetings were under surveillance, by telling employees that its distributorship plan was a device to keep the Union out of the plant, by threatening reprisals for engaging in union activities, by questioning employees as to the identities of union leaders in the plant, by interrogating employees whether they had signed union cards and by stating that the employees could form their own independent union and obtain a better contract than with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.' (C.T. 39-40)
12
The Board adopted the findings, conclusions and recommendations of the Trial Examiner with one modification. It found the change in distribution scheme to be in violation of section 8(a)(3) and (1) of the Act, as charged in the original complaint. This finding was based upon the following reasoning:
13
'In sum, in view of the history of longstanding opposition to the Teamsters Union becoming the bargaining representative of its employees as evidenced by the facts found in our initial decision involving this Respondent and the more recent incidents related previously, we conclude and find that Respondent's change to a distributorship system was not motivated by economic reasons but to the contrary was motivated in substantial part by a discriminatory reason, i.e., to change the status of its employees to independent contractors in order to deny them representation by the Teamsters Union.' (C.T. 81)
14
The conclusions of the Trial Examiner and the order to cease and desist from unfair labor practices, as enumerated supra, were modified so as to be consistent with the foregoing additional finding of the Board.
15
We view petitioner's one-hundred and five page opening brief and accompanying pamphlet listing thirty-seven typographical errors and omissions in that brief as raising a single legal issue: Were the factual findings and conclusions of the Board based upon substantial evidence? We hold that they were.
16
Petitioner correctly points to the Supreme Court decision of Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 as defining the scope of judicial review of orders of the Board in terms of an inquiry into whether they rest upon substantial evidence as found in the record as a whole. Mr. Justice Frankfurter articulated the standard as follows:
17
'The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult than to heed the other factors which in sum determine whether evidence is 'substantial." (340 U.S. at 496-497, 71 S.Ct. at 169)
18
Petitioner contends that the Trial Examiner completely ignored the testimony favorable to it and that:
19
'(a) complete disregard for the sworn testimony of either party depreciates the examiner's findings and suggests their close examination by the Court. Banner Biscuit v. N.L.R.B., 356 F.2d 765, 768 (8th Cir. 1966).' (Pet. Br. 29)
20
Although we are not bound by the Banner decision, we nevertheless respect the theory it advocates. However, we think the factual situation in that case, involving as it did isolated conversations between management and employees, is far different than the one before us. As evidenced by the headings in petitioner's brief (Pet. Br. 70-92), there were at least eleven separate conversations in which union activity was discussed. We do not think the Trial Examiner erred in crediting the employees rather than the management and thus finding in these conversations a common theme of antipathy by management toward the Teamsters in violation of section 8(a)(1) of the Act.
21
The Board, contrary to the Trial Examiner, found it appropriate to determine the legality of the motivation behind the change in distribution scheme. As discussed earlier, it found the reason for the change in the manner of distribution to be inextricably enmeshed in the facts of the earlier cases, supra, which both were resolved against the petitioner. We hold there was substantial evidence from which it could have been concluded that the change in distribution scheme was motivated by a desire to counter the attempts of the Teamsters to organize the Tonkin employees by attempting to place a large group of potential Teamster members beyond the reach of the Act by making them independent contractors. General Teamsters, Chauffeurs and Helpers, Union Local No. 782, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. NLRB, 126 U.S.App.D.C. 1, 373 F.2d 661 (1967), cert. denied, Blue Cab Co. v. NLRB, 389 U.S. 837, 88 S.Ct. 54, 19 L.Ed.2d 100; NLRB v. Goya Foods, Inc., 303 F.2d 442 (2d Cir. 1962), cert. denied 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 171.
22
The findings and legal conclusions concerning the dues deductions in absence of contractual authority, which was found to be in violation of section 8(a) (2), and the admitted refusal to bargain, which violated section 8(a)(5)(1), are fully supported by the record and need no further discussion. Accordingly, the petition to review and set aside the order of the Board is denied, and the Board's cross-petition for enforcement is granted in all respects.
1
The Trial Examiner assumed that the change in distribution system 'was initially made for economic considerations only' and thus did not violate sections 8(a)(3) and (1) of the Act. As is discussed in the text, post, the Board found to the contrary on this issue
| {
"pile_set_name": "FreeLaw"
} |
838 F.2d 1114
60 A.F.T.R.2d 87-5974, 87-2 USTC P 9609
MARATHON OIL COMPANY, Survivor By Merger of Husky OilCompany, Petitioner-Appellant, Cross-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee,Cross-Appellant.
Nos. 85-2643, 85-2644.
United States Court of Appeals,Tenth Circuit.
Nov. 9, 1987.
J.W. Bullion (J.Y. Robb III, with him, on the brief), of Thompson & Knight, Dallas, Tex., for petitioner-appellant/cross-appellee Marathon Oil Co.
Ernest J. Brown, Atty. (Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup and Richard J. Driscoll, Attys., Tax Div., with him, on the brief), Dept. of Justice, Washington, D.C., for respondent-appellee/cross-appellant C.I.R.
Before LOGAN, McWILLIAMS and MOORE, Circuit Judges.
LOGAN, Circuit Judge.
1
Husky Oil Company ("Husky") petitioned the United States Tax Court for a redetermination of alleged deficiencies in taxes due for the years 1975, 1976 and 1977.1 Husky challenged, inter alia, (1) the Commissioner's denial of deductions claimed for interest and redemption premium payments made in connection with the retirement of certain debentures; (2) the Commissioner's treatment of $1,082,999 paid by Husky to its parent corporation and sole shareholder, Husky Oil, Ltd. ("Husky Canada"), as an item of income subject to withholding; and (3) the Commissioner's denial of a portion of the deductions and investment tax credits claimed in connection with Husky's operation of certain oil and gas properties (the Home-Stake properties). The Tax Court found in favor of the Commissioner on the first two issues and in favor of Husky on the third. Husky Oil Co., 83 T.C. 717 (1984). Both parties have appealed.
2
* The Debentures Issue
3
In January 1972, Husky offered and sold to the public $25,000,000 of 6 1/4% convertible subordinated debentures dated January 15, 1972, and maturing January 15, 1997. The debentures were issued under an indenture, the parties to which were Husky as issuer, Husky Canada as guarantor, and Bankers Trust Company as trustee.
4
The debentures were issued in $1,000 denominations and were convertible, at the holder's option, into common shares of Husky Canada at an initial conversion price of $20 per share, subject to adjustment for contingencies not relevant here. To convert the stock, the holder was required to surrender the debenture to a New York agency maintained by Husky and Husky Canada pursuant to Sec. 6.02 of the indenture. Husky retained an option to redeem the debentures at any time for a price equal to the principal amount and interest accrued through the redemption date, plus, if the redemption occurred before June 15, 1992, a premium based on schedules set forth in the indenture.
5
Debentures in the principal amount of $1,515,000 were retired by transactions before the taxable years at issue.2 During 1975, $295,000 of debentures were retired through purchase by Husky. Also, between January 1, 1975, and May 31, 1977, $1,136,000 of debentures were converted into shares of Husky Canada. Husky Canada retained these debentures rather than surrendering them to the trustee for cancellation, but collected no interest on them until the July 1, 1977 intercompany note transactions discussed hereafter.
6
On June 1, 1977, Husky gave notice of its election to redeem all of its outstanding debentures on July 1, 1977. At that time, $22,054,000 of debentures were outstanding in the hands of the public. The redemption price per $1,000 of these debentures was computed as follows:
7
Principal amount $1,000.00
Premium (4.68%) 46.80
Interest (from 1/15/77 to 7/1/77) 28.60
---------
Total $1,075.40
8
As of May 31, 1977, the market price of Husky Canada's common stock was $25.50 per share. Conversion at the specified rate of fifty shares per $1,000 debenture would therefore have resulted in $1,275 market value of shares for each $1,000 debenture.
9
By the close of business on June 16, 1977, the last date on which debenture holders could exercise conversion rights, $22,005,000 of the called debentures had been converted into shares of Husky Canada. On July 1, 1977, Husky redeemed the remaining $49,000 of publicly held debentures. On that day, to pay Husky Canada for the debentures that had been converted to its stock, Husky issued two five percent subordinated notes to Husky Canada, one in the amount of $1,136,000, representing the debentures converted before the June 1 call, and the other in the amount of $22,005,000, representing the principal amount of the debentures converted during June. In July and August 1977, Husky paid a total of $1,723,287 in cash to Husky Canada for accrued interest and redemption premiums allegedly due on the converted debentures held by Husky Canada on the redemption date.3
10
In its tax return for 1977, Husky deducted the following: premium and interest of $1,836,279 ($1,723,287 paid plus $112,992 withholding for taxes) which Husky allegedly owed to Husky Canada for redemption of the debentures that the latter held; $578,525 in accrued interest on the promissory notes issued to Husky Canada; and premium and interest of $3,694 paid on debentures redeemed from the public ($75.40 X 49). All deductions were taken pursuant to I.R.C. Sec. 163(a). The Commissioner denied all but the $3,694 deduction, on the theory that no valid indebtedness existed between parent and subsidiary because Husky's obligation on the debentures was expunged upon conversion to Husky Canada stock.
11
The Tax Court held that the principal amount of the converted debentures remained an outstanding debt of Husky, and allowed the deduction of interest on the promissory notes given to retire those debentures. Husky Oil, 83 T.C. at 734-35. The Commissioner does not appeal this holding. The Tax Court also held, however, that, under the indenture, Husky had no obligation to pay interest or redemption premiums to Husky Canada on converted debentures. Id. at 735. It therefore disallowed the $1,836,279 deduction. Husky has appealed this disallowance.
12
Husky's argument on appeal centers on Sec. 5.11 of the indenture, which provides:
13
"All Debentures delivered to the Guarantor [Husky Canada] upon conversion pursuant to this Article Five (hereinafter in this Section 5.11 called 'Converted Debentures') shall be imprinted with a legend indicating such conversion and held by the Guarantor, and may, at any time at the discretion of the Guarantor, be surrendered to the Trustee for cancellation. Converted Debentures shall not be further convertible into Common Stock, and shall not be redeemable, whether by operation of the Sinking Fund provided for in Article Four or otherwise, unless all Debentures at the time outstanding held by persons other than the Guarantor shall be redeemed at the same time. The Guarantor may extend or consent to the extension of the time for the payment of interest, and may waive interest on all or any Debentures held by it.
14
The indebtedness evidenced by Converted Debentures, including the principal thereof and premium, if any, and interest thereon, and the Guarantee thereof, shall be subordinate and subject in right of payment to all other Debentures, to the same extent and in the same manner that the indebtedness evidenced by the Debentures is subordinate and subject in right of payment to Senior Indebtedness, all as set forth in Article Three of this Indenture."
15
Husky contends that Sec. 5.11, particularly the language referring to subordination of interest and premium payments on converted debentures, clearly indicates that the parties intended that converted debentures would remain outstanding in Husky Canada's hands unless voluntarily surrendered for cancellation, and that Husky Canada would have a right to accrued interest and premium payments in the event of redemption.4
16
Husky's position assumes that Husky had to treat its parent Husky Canada the same as any other third party guarantor, and that the indenture, particularly Sec. 5.11, substituted and treated Husky Canada essentially as an outside debenture holder after the public holders chose conversion to Husky Canada shares rather than redemption by Husky pursuant to its call.
17
The Commissioner challenges this assumption by presenting several arguments, two of which focus on the economic reality of the Husky-Husky Canada transaction. The first is that Husky and Husky Canada must be treated as one entity for purposes of the case before us. The Commissioner also argues that Husky Canada, by issuing its stock to the public debenture holders who chose conversion over Husky's redemption offer, is in the same position as any sole shareholder who discharges corporate debt to enhance the value or secure the safety of its investment and thereby makes a capital contribution to the corporation.
18
Because Husky is wholly owned by Husky Canada and Husky's stock is not traded, Husky can gain access to the lower interest rates available in the convertible debenture debt market only by offering conversion to the stock of its publicly traded parent. Such a transaction is common, and here was beneficial to Husky Canada as 100% owner of Husky. See, e.g., National Can Corp. v. United States, 687 F.2d 1107, 1108-10 (7th Cir.1982). The public debenture holders choosing to take equity, stock in Husky Canada, rather than extinguishment of the debt through redemption, gave up the accrued interest and the redemption premium. See Chock Full O'Nuts Corp. v. United States, 453 F.2d 300, 305-06 (2d Cir.1971). If Husky, rather than Husky Canada, had issued the stock received by those who chose conversion, then under the established case law Husky could not obtain a tax deduction for interest or premium the debenture holders gave up by converting into equity. See, e.g., Tandy Corp. v. United States, 626 F.2d 1186, 1193-94 (5th Cir.1980); Columbia Gas System, Inc. v. United States, 473 F.2d 1244, 1247-49 (2d Cir.1973); Bethlehem Steel Corp. v. United States, 434 F.2d 1357, 1360-61 (Ct.Cl.1970). The Commissioner argues that to allow Husky Canada to treat itself as a substitute debenture holder, instead of an issuer of stock subject to the rationale of those cases, would elevate form over substance and permit manipulation for tax advantage, because Husky Canada as Husky's 100% owner could choose to be paid interest and premiums or could decline them, as it did in connection with the 1973 and 1974 conversions.
19
Alternatively, the Commissioner asserts that by issuing its stock to converting debenture holders, Husky Canada paid off Husky's corporate debt, which it had guaranteed; and that this should be treated no differently than any other transaction in which a controlling shareholder pays off corporate debt to enhance the value of its investment. Were we to accept this argument, we would treat the debt discharge as a capital contribution, see Treas.Reg. Sec. 1.118-1 (1956); Lidgerwood Manufacturing Co. v. Commissioner, 229 F.2d 241, 243 (2d Cir.1956); Menihan v. Commissioner, 79 F.2d 304, 306 (2d Cir.), cert. denied, 296 U.S. 651, 56 S.Ct. 368, 80 L.Ed. 463 (1935), and increase Husky Canada's basis in its Husky stock by the amount which the debt discharge enriched Husky. See I.R.C. Sec. 1016(a)(1).
20
While there is much to be said for the government's theories on an economic reality basis, they present two problems. First, the Internal Revenue Code permits parent and subsidiary corporations to treat themselves as separate entities for many tax purposes. See, e.g., I.R.C. Sec. 1501 (privilege to file consolidated returns); Campbell v. Carter Foundation Production Co., 322 F.2d 827, 831 (5th Cir.1963) ("transactions between parent-subsidiary corporations are not to be disregarded for tax purposes merely because of that relationship."); see generally Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). Acceptance of the Commissioner's arguments, if carried too far, would mean parent and subsidiary could not structure a transaction between them as debt. Second, as Husky points out, the Tax Court did treat the principal balance of the converted debentures as debt owed from the subsidiary to the parent. Husky Oil, 83 T.C. at 734-35. The Commissioner argues that recognition of the converted debentures as debt was not essential to the Tax Court's decision. But we do not agree. The Tax Court did allow Husky to deduct interest payments on notes evidencing that debt, id. at 735, and the Commissioner does not appeal that allowance.
21
We need not rule directly upon whether the Internal Revenue Code would permit Husky Canada to be treated as a substitute creditor after the conversion. The court assumed that the parent could be a creditor of the subsidiary corporation, but, as we read its holding, ruled that this indenture did not express an intent to treat Husky Canada, after the conversion, as a substitute debenture holder entitled to premium and interest accrued to the date of conversion.
22
In discerning the intent of the parties, the Tax Court looked to the document as a whole. It responded to Husky's Sec. 5.11 argument by declaring that "it distorts the meaning of the indenture to isolate Sec. 5.11, which is only intended to subordinate the debt of converted debentures ... to the debt of all other debentures, and conclude that ... the indenture requires petitioner to pay interest and premiums on converted debentures." Husky Oil, 83 T.C. at 732. The court interpreted the reference to "debentures" in Sec. 5.11 as meaning something different than "converted debentures." Id. The court referenced other sections of the indenture, stating that because those provisions "must be read in the context of the entire 105-page indenture, ... we must also consider ... [the effect of the public debenture holder's exercise of other] conversion rights upon the right to receive interest and premium." Id. It then analyzed the "no adjustment" clause in Sec. 5.03 of the indenture and discussed Tandy and other cases. Id. at 732-35. Finally, it returned to Sec. 5.11 and held that when read in the context of the entire indenture, the section evinces an intention that Husky repay principal. Id. at 735. The Tax Court went on to hold, however, that the conversion did extinguish Husky's obligation to pay accrued interest and premium. Id.
23
We must treat the Tax Court's findings, based upon its reading of the indenture, as fact findings, to which we apply a clearly erroneous standard of review. "This is so even when the [Tax Court's] findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).
24
Although our analysis of the indenture might have been different, we cannot find the Tax Court's conclusion clearly erroneous. One plausible reading of Sec. 5.11 is that debentures surrendered for Husky Canada stock, at Husky Canada's option, may retain their status as outstanding debentures, and that although Husky Canada could not force redemption, upon a call of all debentures it would be entitled to accrued interest and premium. But that interpretation is not compelling, in light of other provisions in the indenture. As the government points out, Sec. 2.08 undermines the notion that Husky and Husky Canada stood at arms' length as debtor and creditor. That section states that all debentures surrendered for conversion shall, if surrendered to "the Company [Husky] or any paying agent," be delivered to the trustee for cancellation, with no debentures issued in lieu thereof. Because Husky Canada and Husky jointly maintained the office through which all debentures the public surrendered for conversion presumably must have passed, see indenture Secs. 6.02 and 6.05, Sec. 2.08 appears to some extent to conflict with Husky's reading of Sec. 5.11.
25
In addition, while one may read indenture Sec. 5.03 to mean that only public holders of debentures have no rights to interest or premiums upon conversion,5 the section's prohibition of interest and premium at least raises questions why Husky Canada should be given such rights when public holders of debentures give them up if they convert to stock. Indenture Sec. 4.01 provides for a reduction in Husky's required payments to the sinking fund respecting debentures converted to Husky Canada stock before the date fixed for redemption. This can be construed as a recognition that Husky Canada is not entitled to normal redemption rights.
26
Finally, in many places throughout the indenture Husky Canada, identified as the Guarantor, is explicitly or implicitly treated as other than a "holder of debentures" in the normal sense of that term. For example, in Sec. 10.04, Husky is explicitly omitted when determining whether debenture holders have concurred in any "direction, consent or waiver under this Indenture." In other places the exclusion is implicit. See Secs. 4.02, 7.02(c), 7.03(c), 8.01(e), 8.06, 9.10. Thus, we cannot hold as clearly erroneous the Tax Court's finding that under the indenture Husky Canada was not to stand, after conversion, in the same position as a public debenture holder who surrenders his shares for redemption after a call.
27
Neither do we find that the law requires a different result than that reached by the Tax Court. Husky cites no code section or case that requires these payments between Husky and Husky Canada be made or be recognized for tax purposes. Husky must acknowledge that its parent, Husky Canada, could treat the discharge of Husky debt as a capital contribution. Indeed, Husky Canada did so with respect to the debentures converted in 1972 and 1974. Husky must also acknowledge that Husky Canada could forego interest and premium on the debentures. Husky Canada did not collect interest on debentures converted in 1973 and 1974. It did not collect on 1975 to 1977 conversions until it included the accrued amounts in notes executed on July 1, 1977. Further, indenture Sec. 5.11 expressly permits Husky Canada to waive interest owed it by Husky on the debt for the converted debentures. Husky Canada, as 100% owner, has complete control of Husky. We believe that the separate treatment for tax purposes of parent and wholly-owned subsidiary should not be extended when we can see no business purpose beyond an opportunity to manipulate for tax advantage. We therefore affirm the Tax Court's denial of the tax deduction for premium and interest paid Husky Canada by Husky.II
The Withholding Issue
28
Husky argues that the Tax Court erred in holding that the cash premium of $1,082,999 paid to Husky Canada in connection with Husky's redemption of the converted debentures constituted an item of income to Husky Canada under I.R.C. Sec. 1441(b), from which Husky was required to withhold tax pursuant to I.R.C. Sec. 1442. Section 1442 provides, in part: "In the case of foreign corporations subject to taxation under this subtitle, there shall be deducted and withheld at the source in the same manner and on the same items of income as is provided in section 1441 a tax equal to 30 percent thereof." I.R.C. Sec. 1442(a). The items of income subject to withholding under Sec. 1441 include "interest ..., dividends, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income...." I.R.C. Sec. 1441(b).
29
Husky contends that the term "premiums," as used in I.R.C. Sec. 1441(b), refers only to insurance premiums and does not include bond premiums; and further that bond premiums do not meet the overall definition of "fixed or determinable annual or periodical income." The Tax Court did not reach this issue, because it rejected Husky's characterization of the payment as a bond premium. Husky Oil, 83 T.C. at 737. In section I of this opinion, we affirmed the Tax Court's refusal to characterize this payment as a bond premium. Because Husky has made no other argument for exclusion from withholding under I.R.C. Sec. 1441(b), we must affirm the Tax Court's decision on the withholding issue.
III
The Intangible Drilling Costs Issue
30
The third issue in this case requires us to determine Husky's entitlement to deductions for depreciation and intangible drilling and development costs, as well as investment tax credits, in certain oil and gas ventures acquired from Home-Stake Production Company ("Home-Stake").
31
Home-Stake sold "units of participation" in oil and gas ventures to public investors. These units represented direct ownership of undivided working interests in oil and gas leases. In 1973, Home-Stake filed a petition in federal court for reorganization under the prevailing bankruptcy laws. In June 1974, the bankruptcy court approved an agreement between Home-Stake's bankruptcy trustee and Husky, whereby Husky assumed responsibility for operating and developing the oil and gas leases comprising Home-Stake's investment programs.
32
The agreement divided the leases into two geographic groups, Unit Area A and Unit Area B; the present controversy is limited to deductions and credits claimed with respect to Unit Area A. At the time of the agreement, Unit Area A consisted of six oil and gas leases and included seventy-five existing wells and a pipeline.
33
Under this agreement, the bankruptcy trustee transferred all of Home-Stake's interests in the leases and related property to Husky, to be held in trust for the benefit of those owning units of participation. As consideration for this transfer, Husky paid the bankruptcy trustee $180,000, half of which Husky was entitled to recover from net revenues from the properties.
34
The agreement further required Husky to advance and pay all operating expenses, rents and royalties, to purchase or sell all the oil and gas produced, and to plug and abandon wells whenever Husky deemed it advisable. In addition, it obligated Husky to make all necessary capital expenditures for development of the properties and improvement of existing wells, at least until such expenditures amounted to $3,000,000, at which time the participants had a one-time opportunity to elect to pay their prorata share of any further capital expenditures. Under the agreement, Husky acquired a five percent "participating interest" in Unit Area A for each $750,000 in capital expenditures that it contributed to that Unit, up to a twenty percent interest for $3,000,000 in capital expenditures. Thereafter, Husky would earn an additional ten percent participating interest for each $8,000,000 distributed to participants other than Husky, until it had a total maximum fifty percent participating interest in Unit Area A. As of December 31, 1977, Husky had made a total of $2,840,416 in capital expenditures, partly for work on existing wells and partly for drilling four new wells. These had earned Husky a five percent participating interest on June 1, 1975, which rose to ten percent on November 1, 1975, and fifteen percent on August 1, 1976.
35
Under the agreement the income from Unit Area A for each month was applied first to payment of rents and royalties, and second to operating costs incurred for that month. Seventy-five percent of any monthly income in excess of such costs was available to reimburse Husky for uncovered interim operating expenses and one-half its original payment for the transfer of Home-Stake's interests, and to cover operating deficits from prior months. Until Husky had made capital expenditures totalling $3,000,000, the remaining excess income was to be distributed to the participants, including Husky, in proportion to their interests.6
36
On its tax returns for 1975, 1976 and 1977, Husky took deductions for depreciation and intangible drilling and development costs, and claimed investment tax credits for amounts expended on Unit Area A. The Commissioner's notice of deficiency reduced the amount of deductions and investment tax credits, to correspond to Husky's participating interest in Unit Area A for the years in question.
37
The Tax Court held that because Husky "carried the burden of the total working interests and thus had the comprehensive economic interest in Unit Area A during 1975, 1976, and 1977, it is entitled to deduct the intangible drilling and development costs and to claim depreciation and investment tax credits attributable thereto." 83 T.C. at 741. The Commissioner has appealed this determination.
38
Treasury Regulation Sec. 1.612-4 (1965) governs the deductibility of intangible drilling and development costs. This regulation was promulgated under the authority of I.R.C. Sec. 263(c), which requires the Secretary of the Treasury to prescribe regulations granting "the option to deduct as expenses intangible drilling and development costs in the case of oil and gas wells" which might otherwise be treated as capital expenditures under Sec. 263(a). See Harper Oil Co. v. United States, 425 F.2d 1335, 1338-42 (10th Cir.1970) (discussing the history of the option). The regulation provides, in part:
39
"(a) Option with respect to intangible drilling and development costs. In accordance with the provisions of section 263(c), intangible drilling and development costs incurred by an operator (one who holds a working or operating interest in any tract or parcel of land either as a fee owner or under a lease or any other form of contract granting working or operating rights) in the development of oil and gas properties may at his option be chargeable to capital or to expense. This option applies to all expenditures made by an operator for wages, fuel, repairs, hauling, supplies, etc., incident to and necessary for the drilling of wells and the preparation of wells for the production of oil or gas....
40
....
41
... Included in this option are all costs of drilling and development undertaken (directly or through a contract) by an operator of an oil and gas property whether incurred by him prior or subsequent to the formal grant or assignment to him of operating rights (a leasehold interest, or other form of operating rights, or working interest); except that in any case where any drilling or development project is undertaken for the grant or assignment of a fraction of the operating rights, only that part of the costs thereof which is attributable to such fractional interest is within this option. In the excepted cases, costs of the project undertaken, including depreciable equipment furnished, to the extent allocable to fractions of the operating rights held by others, must be capitalized as the depletable capital cost of the fractional interest thus acquired."
42
Treas.Reg. Sec. 1.612-4(a) (emphasis added).
43
The Commissioner argues that because Husky received a fractional interest in the proceeds distributed to participants in exchange for its capital contributions, the "except" clause of Treas.Reg. Sec. 1.612-4(a) places corresponding limitations on Husky's deductions for intangible drilling and development costs and depreciation. The Commissioner points to Husky's acquisition of interests in existing wells and asserts that under the agreement Husky recouped its intangible drilling costs from production from existing and newly drilled wells and had to share proceeds from all of the wells with others. Husky, on the other hand, argues that it "accepted the responsibility and risks associated with the working interest and paid all costs during the years in question," Taxpayer's Brief at 47, and is entitled to the corresponding deductions.
44
The crucial issue here, as the Tax Court correctly identified, is whether Husky acquired all of the "operating rights" in the leases at the outset of the agreement, or only incrementally during the years at issue while other investors retained working interest rights. We agree with the Tax Court's conclusion that the scheme from its inception gave all of the operating rights to Husky.
45
As used in Treas.Reg. Sec. 1.612-4(a), the terms "operating rights," "operating interest," and "working interest" appear to be synonymous. See Miller's Oil and Gas Federal Income Taxation ch. 13-1, at 202 (J. Houghton ed. 1983) ("A working interest is sometimes referred to as an 'operating interest,' but both terms convey the same meaning since the interest involved is burdened with all operating costs."). It is the burden of operating and developing the property that distinguishes the operating or working interest from nonoperating interests such as royalty or net profits interests. See Brooks v. Commissioner, 424 F.2d 116, 122 (5th Cir.1970); I.R.C. Sec. 614(d) (defining "operating mineral interest" for depletion purposes as including "only an interest in respect of which the costs of production of the mineral are required to be taken into account by the taxpayer for purposes of computing the 50 percent [of taxable income] limitation provided for in section 613"); Treas.Reg. Sec. 1.614-2(b) (1965) (excluding "royalty interests or similar interests, such as production payments or net profits interests" from the definition of "operating mineral interest").
46
Both the Commissioner and Husky rely strongly on United States v. Cocke, 399 F.2d 433 (5th Cir.1968) (en banc), cert. denied, 394 U.S. 922, 89 S.Ct. 1187, 22 L.Ed.2d 455 (1969). In one of the leases at issue in Cocke, Humble Oil agreed to drill and develop for a fifty percent production interest. Humble was required to advance all costs and could recoup them only out of its own and one-half of the other owners' shares of production, if any. Cocke, who made no contribution except for sums deducted under the agreement before distribution to him, claimed deductions on his tax returns for depletion, expenses and intangible development costs. The court disallowed the deductions except for depletion on amounts actually distributed to Cocke, holding that although Cocke had title, he had neither incurred the expenses nor assumed any risk. While the Cocke opinion did not deal with the deductions available to Humble, whose position was comparable to Husky's in the case before us, we believe the case supports Husky's contentions and not the Commissioner's.
47
Cocke held that title ownership is not controlling. Rather, the economic risk of development is most important. Cocke clearly implied that the deductions were available to Humble as the party which paid them and bore the risk of loss.
48
"The same deductions cannot be taken by two parties. We here must determine which of the two is to be the beneficiary of the largesse. Our answer is the more intrepid of the two. Humble here made the essential contribution of risk capital for the enterprise. When the agreements were signed, Humble received from the Cockes the right to use the first oil produced to recoup that capital."
49
399 F.2d at 452.
50
Under the agreement before us, Husky assumed the entire burden of operation and further development of Unit Area A for the life of the property, subject only to the options of the other participants to begin paying their shares of capital expenditures after Husky had contributed its initial $3,000,000.7 Husky could look only to the proceeds from the oil and gas produced to recoup its costs. Husky therefore held the entire operating interest in Unit Area A during the years in question. Because the other participants were permanently relieved of the burden of operation and development and simply received a share of the proceeds remaining after payment of certain specified costs, their interests must be characterized as "net profits" rather than "operating" interests for tax purposes. See United States v. Thomas, 329 F.2d 119, 130 & n. 2 (9th Cir.) (en banc), cert. denied, 379 U.S. 819, 85 S.Ct. 39, 13 L.Ed.2d 31 (1964); Callahan Mining Corp. v. Commissioner, 428 F.2d 721, 725 (2d Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140 (1970).8
51
This characterization conflicts to some extent with our decision in Reynolds v. McMurray, 60 F.2d 843 (10th Cir.), cert. denied, 287 U.S. 664, 53 S.Ct. 222, 77 L.Ed. 573 (1932). There McMurray and the Ohio Oil Company owned undivided interests in certain oil leases. Ohio Oil had agreed to manage, control, develop and operate the leases, to pay all costs incident to those activities, and to look only to McMurray's share of the proceeds for payment of his share of the costs. Id. at 843.
52
The issue on appeal was "whether that portion of Will McMurray's share of the receipts from such leases applied to reimburse the Ohio Company for expense of development and operation, less proper deductions, was income to Will McMurray for the years involved, and therefore subject to the tax." Id. at 844. This court held that it was, even though Ohio Oil alone bore the risk that proceeds from the wells would not be sufficient to cover the costs of development and operation. The court noted that the result might have been different had McMurray relinquished his rights in the leases in return for a percentage in the net profit, but that "such was not the effect of the agreements.... The purpose of the agreements was to facilitate development; not to transfer title. The title of the respective owners remained as before." Id.
53
To the extent that participants other than Husky retained title to the oil and gas leases in Unit Area A, McMurray could be read as requiring allocation, for tax purposes, of a corresponding share of the income and operating costs to those interests. Such a title-based approach, we now believe, is incorrect. The Supreme Court has held that, when natural resources are concerned, economic interests, not concepts of property law, control. Thus, in Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933), the Court applied the "economic interests" test and held that a lessor's right to the depletion allowance "does not depend upon his retention of ownership or any other particular form of legal interest in the mineral content of the land." Id. at 557, 53 S.Ct. at 227. Rather, the Court held, the allowance is available to any taxpayer who "has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital." Id.; see also Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 604, 66 S.Ct. 409, 411, 90 L.Ed. 343 (1946) ("Economic interest does not mean title to the oil in place but the possibility of profit from that economic interest dependent solely upon the extraction and sale of the oil.").
54
Subsequent cases involving the depletion allowance similarly reject the title-based approach and apply the "economic interests" test. See Cocke, 399 F.2d at 444-47; Thomas, 329 F.2d at 130. After review by the entire court, we are authorized to state that to the extent that McMurray would require allocation of a portion of the operating income and deductions to participants other than Husky during the years in question, it is hereby overruled. The Commissioner long ago took the position that McMurray was incorrectly decided. Gen.Couns.Mem. 22,730, 1941-1 C.B. 214, 223-24.
55
If taxation of oil and gas interests is to be determined by economic reality rather than form, then the party who bears the economic risks associated with the operating interest in an oil and gas lease must also be entitled to claim the deductions associated with that interest, whether or not that party possesses the legal or equitable title to the lease. Under Treas.Reg. Sec. 1.612-4(a), intangible drilling and development costs may be deducted by an "operator," defined as "one who holds a working or operating interest in any tract or parcel of land either as a fee owner or under a lease or any other form of contract granting working or operating rights " (emphasis added). The agreement at issue here granted Husky the exclusive operating rights in Unit Area A. When the party undertaking a drilling or development project has acquired such entire operating interest in the subject property, the "except" clause of Treas.Reg. Sec. 1.612-4(a) regarding fractional operating interests does not apply, even if a percentage of gross revenues from the property is payable to the holders of other interests. We therefore hold that a party who bears all costs of operation and development and who can only recoup these costs out of oil revenues, has a one hundred percent operating interest.
56
AFFIRMED.
1
Following initiation of the tax court proceeding, Husky Oil Company merged into Marathon Oil Company, which was substituted as petitioner
2
Debentures totalling $500,000 were purchased by Husky in 1974. In 1973 and 1974, another $1,015,000 were converted into Husky Canada shares; of these $86,000 were contributed by Husky Canada to Husky as capital contributions and the balance was credited to an intercompany account payable, without any premium or interest payment, by issuing Husky common stock to Husky Canada on July 1, 1975
3
This amount was computed as follows:
Debentures converted from June 1, 1977 Premium
through June 16, 1977--Principal Amount and
$22,005,000 Interest
--------------------------------------- --------
Premium 4.68% of $22,005,000 ................... $1,029,834
Interest 1/16/77 to 6/16/77 2.603% of
$22,005,000 .................................. 572,790
Interest 6/16/77 to 7/1/77 .257% of
$22,005,000 .................................. 56,553
-----------
Subtotal ............................ $1,659,177
Debentures converted from April 2, 1975 to
May 11, 1977--Prinicipal Amount $1,136,000
------------------------------------------
Premium 4.68% of $1,136,000 .................... $ 53,165
Interest from date of conversion (various) to
1/15/77 ...................................... 88,437
Interest from 1/15/77 to 7/1/77 3.125% of
$1,136,000 ................................... 35,500
-----------
Subtotal ............................ $ 177,102
Grand Total ......................... $1,836,279
Less 15% withholding for taxes on the total
interest of $753,280 ......................... ( 112,992)
-----------
Amount of cash ultimately paid by Husky to
Husky Canada ................................. $1,723,287
4
Under Treas.Reg. Sec. 1.163-4(c) (1973) and I.R.C. Sec. 249, a premium paid on redemption of convertible debentures is deductible as interest by the issuing corporation to the extent it does not exceed a "normal call premium," defined by Treas.Reg. Sec. 1.249-1(d)(2) (1973) as an amount not in excess of one year's interest
5
Indenture Sec. 5.03 reads as follows:
"No adjustments in respect of interest or dividends shall be made upon the conversion of any Debenture or Debentures; provided, however, that nothing contained herein shall alter or impair the obligation of the Company to pay interest on any Debenture on any interest payment date notwithstanding the conversion of such Debenture between the close of business on the record date next preceding such interest payment date and such interest payment date."
6
After Husky had made capital expenditures totalling $3,000,000, 75 percent of any excess monthly income was, to the extent remaining after the payments specified above, to be paid to Husky and any participants electing to make capital expenditures until 150 percent of such expenditures were recovered. The remaining excess income was to be distributed to the participants, including Husky
7
The existence of an unexercised option belonging to the other participants to begin making capital contributions after a certain point does not diminish or otherwise alter Husky's interest in the property during the years in question. Cf. United States v. Swank, 451 U.S. 571, 585, 101 S.Ct. 1931, 1939, 68 L.Ed.2d 454 (1981) (existence of lessor's unexercised right to terminate lease did not destroy lessee's economic interest in the leased mineral deposits for depletion purposes)
8
Husky contends that we should view the other participants as owning perpetual carried working interests rather than net profits interests, because they were entitled to share in proceeds from equipment salvage. We see no reason why this factor should affect the tax treatment of any of the interests involved. See Cocke, 399 F.2d at 444-47 (retention of interest in equipment by perpetually carried party insufficient to distinguish that party's interest from net profits interest found in Thomas ); Miller's Oil and Gas Federal Income Taxation ch. 16-8, at 269 (J. Houghton ed. 1983) ("From a practical standpoint, no economic differences are perceived between an unlimited carried interest arrangement and a net profit arrangement")
| {
"pile_set_name": "FreeLaw"
} |
No. 1-95-4018
IN RE ESTATE OF KIRSTEN JOHNSON, )
a Minor, )
)
VERA HOWSE, ) APPEAL FROM THE CIRCUIT
) COURT OF COOK COUNTY.
Petitioner-Appellee, )
)
v. ) HONORABLE BENJAMIN
) NOVOSELSKY, JUDGE
ERIC JOHNSON, ) PRESIDING.
)
Respondent-Appellant. )
JUSTICE GORDON delivered the opinion of the court:
Vera Howse filed a petition seeking appointment of herself
as the successor guardian of the person of the minor, Kirsten
Johnson, her niece, after Kirsten's mother and guardian, Barbara
Johnson, died. Kirsten, who was 16 years old, signed the
petition and nominated Vera Howse as the guardian of her person.
Attached to Howse's petition was a copy of Barbara Johnson's will
in which she nominated her sister, Vera Howse, as guardian of
Kirsten's person and estate. Eric Johnson, Kirsten's father,
moved to dismiss Howse's petition and alternatively sought
appointment of himself as Kirsten's successor guardian. After
the hearing, the trial court denied Eric Johnson's motion and
request to be appointed Kirsten's guardian and granted Howse's
petition. The court determined that it was in Kirsten's best
interest that Howse be appointed the guardian of her person.
Eric Johnson appeals.
The issues raised in this appeal are whether the probate
court had jurisdiction to appoint a nonparent as guardian of a
minor when a parent is living and able to care for the minor and
whether the trial court afforded the surviving, noncustodial
parent a fair hearing.
The evidence presented at the hearing on the petitions
seeking appointment of guardianship showed that the marriage of
Barbara and Eric Johnson was dissolved pursuant to judgment
entered on September 26, 1983. That judgment awarded sole
custody of Kirsten Johnson to Barbara and provided visitation
rights to Eric. Eric was required to pay $500 per month in child
support and was responsible for Kirsten's extraordinary medical
expenses.
On May 28, 1986, Kirsten sustained multiple trauma with
severe head injuries. A personal injury lawsuit was filed on
her behalf and that lawsuit was settled in 1990. In accordance
with the settlement agreement, Kirsten received a cash payment of
$750,000 plus a structured settlement annuity that guaranteed
total payments of $4,485,405.88 with expected total payments
reaching as high as $14,418,036.24. First Colonial Trust Company
was named by the probate court to act as the guardian of
Kirsten's estate. Barbara Johnson, the custodial parent,
remained as the guardian of Kirsten's person until her death on
April 30, 1995.
Vera Howse, Barbara Johnson's sister, testified that in
1993, for a period of about three weeks while Barbara was in the
hospital undergoing a bone marrow transplant, she was appointed
by the court to care for Kirsten. After Barbara was released
from the hospital, Howse continued to assist Barbara and cared
for Kirsten by bringing food and making sure that Kirsten
attended school and doctor appointments. In June 1994, when
Barbara could no longer care for herself or Kirsten, Barbara and
Kirsten moved into Howse's home in Matteson, Illinois. Howse
made arrangements for Kirsten to have necessary dental work
performed and for her to attend counselling at school. She also
talked to Kirsten's teachers on several occasions. Howse
regularly took Kirsten to her church in Chicago even though Howse
attended another church.
Howse stated that, after Barbara's divorce and until June
1994, Eric Johnson was not involved in the day-to-day
responsibilities toward Kirsten. She stated that she also never
saw him during the three-week period in 1993 when Barbara was
hospitalized. Howse had no knowledge whether Eric called the
house to see how Kirsten was doing or whether Kirsten had any
contact with Eric during that three-week period. She stated that
the first time Eric came to see Kirsten after her move to
Matteson was in October 1994. According to Howse, Eric visited
Kirsten once in February 1995 and a couple of times in March.
Howse did not think that Eric took Kirsten over to his house on
any of those occasions and stated that Kirsten never stayed
overnight at Eric's house.
Howse further testified that while Barbara was alive and
living with her, she would receive about $500 per month from
Barbara. She stated that she did not know whether Barbara was
receiving any child support payments from Eric.
Howse stated that she wanted to be Kirsten's guardian
because Kirsten was "like [her] daughter" and because she helped
Barbara raise Kirsten since Kirsten was born. She stated that
she raised Kirsten in "a Christian atmosphere" and with love.
On cross-examination by Kirsten's guardian ad litem, Howse
stated that Eric visited Kirsten a few times in April 1995 before
Barbara died. At that time, Eric did not offer to provide any
money or to take custody of Kirsten. She stated that in May 1995
Kirsten stayed overnight at Eric's house. Kirsten also stayed
overnight a couple of times in June. On none of those occasions
did Eric offer to provide any money to Howse. Howse stated that
Eric visited Kirsten in July 1995 and once in August. He took
Kirsten for about a week and a half in September without Howse's
consent. Howse further stated that from the time of Barbara's
death until the hearing, Eric had never provided her with any
financial support for Kirsten and had never discussed Kirsten's
daily needs, education, or religious instruction with her.
On cross-examination by Eric's counsel, Howse testified that
she never approached Eric to discuss Kirsten's daily needs,
educational needs, religious education or support. Howse
admitted that she did not have personal knowledge regarding any
child support payments made by Eric to Barbara. She stated that
the sole basis for her testimony regarding Eric's support
payments was a conversation she had with Barbara "about a year
ago" in which Barbara told her that Eric hadn't paid support in
about four or five years.
Howse stated that in March 1995 she had a discussion with
Eric concerning Kirsten's living arrangements if Barbara was to
die. She stated that Eric indicated that he wanted Kirsten.
When Barbara died, Eric told Howse that he had talked to Kirsten
and that Kirsten stated she wanted to stay with Howse. Howse
testified that Eric said that Kirsten could stay with her until
she finished high school. She conceded that Eric was a member of
Kirsten's church and that Eric attended that church while he was
married to Barbara and also attended that church on a few
occasions after Barbara died.
Howse further testified that her home in Matteson was sold
in February 1995 to the trust fund established for Kirsten's
estate. After the sale, Howse continued to reside in the home
with her mother, Esther J. Miles, who was deceased at the time of
the hearing; her son and daughter; her sister, Esther Frierson;
and her brother, Elmer Miles, who had "MS." Howse stated that
Esther Frierson moved in to help with Kirsten. The Matteson
house has three bedrooms, one of which is occupied by Kirsten.
Kirsten shared the room with her mother and also shared it with
overnight guests. Howse admitted that neither she nor any
members of her family were making rent payments to Kirsten. She
stated, however, that the bills for the house were still in her
name (although there was nothing in the record to establish who
paid those bills); that her sister, Esther, who was unemployed,
gave her $100 per month; and that all of the people who lived in
the Matteson home paid for food, washed clothes and kept the
house clean.
Mary Hawes, a speech language pathologist for the Rich
Township high schools and a teacher in the special education
program, testified that Kirsten was one of eleven students
assigned to her care. Kirsten came to the school in the fall of
1994. She tested Kirsten in early 1995 and determined that
Kirsten was at the 11th grade level in reading recognition, which
she defined as Kirsten's "ability to say words, not the
understanding;" better than twelfth grade in spelling (twelfth
grade nine months); fourth grade in mathematics; and third grade
in reading comprehension. She stated that Kirsten was
"mainstreamed out for chorus and PE." Hawes disclosed that she
met with Barbara on two occasions and that she had several
telephone conversations with Howse concerning Barbara's illness.
Hawes saw Howse and Frierson when they attended an awards
ceremony at school, when they attended an open house, and spoke
with them by telephone on several occasions. She also spoke with
Eric Johnson once at the end of the prior school year.
On cross-examination, Hawes testified that Eric Johnson
spoke with her in the fall of 1995 about placing Kirsten in
another school district. She also met with him and had another
telephone conversation with him concerning Kirsten's move to
Bolingbrook. She did not know whether a program at another
school would be as good or better than the program at Rich
Central if Kirsten transferred to another school. Hawes stated
that Kirsten was a junior and was scheduled to graduate the
following school year.
Esther Frierson, the sister of Vera Howse, testified that
she had taken care of some of the responsibilities and duties
surrounding the day-to-day life of Kirsten since Kirsten was
born. During the four or five months preceding Barbara's death,
Frierson would visit the Matteson house on a daily basis to help
Barbara and Kirsten. When Barbara died, she moved into the
Matteson house to help with Kirsten while Vera was at work. She
stated that she would wake Kirsten up in the morning, make sure
her clothes were ironed, make sure she had eaten breakfast and
had taken care of her personal hygiene and sent her off to
school. When Kirsten returned from school, Frierson would help
her with her homework. Frierson testified that since May 1995,
Eric came to the house four times. She further testified that
Kirsten is living in a stable environment, has friends, goes to
church, is comfortable and "feels free to grow."
Katherine Miles, Kirsten's cousin, testified that she lived
with Barbara during the period of 1984 until Barbara moved to
Matteson. She stated that she helped care for Barbara's children
while Barbara was at work. She stated that, when she lived with
Barbara, she observed Barbara crying on several occasions because
she was not receiving child support monies. With respect to
Eric's visits with his children, Miles testified that "sometimes
[Eric] would show up and sometimes he wouldn't." According to
Miles, there were times that Eric did not meet the needs of his
family.
On cross-examination, Miles testified that she did not know
how much money Eric was ordered to pay Barbara. She also stated
that she did not know how much he did pay.
Robert Jansen, vice president of Firstar Bank of Illinois,
formerly known as First Colonial Trust Company, the bank acting
as the guardian of Kirsten's estate, testified that payments were
being made out of Kirsten's estate for mortgage loans,
homeowner's insurance, and health insurance. He stated that
Kirsten's estate had paid approximately $23,000 in health
insurance premiums and that Eric Johnson had reimbursed the
estate in the approximate amount of $6,500. On cross-
examination, Jansen stated that in August 1995 Eric had advised
him that he had an insurance policy for Kirsten. Eric did not
provide any identification for that insurance.
Steffa Mirel, a psychotherapist licensed in the state of
Illinois as a clinical social worker, was called by Eric Johnson.
Mirel testified that she was Kirsten's therapist from July 1991
until November 1994. She stated that she had occasion to talk to
Eric during the one-year period beginning late 1991 or early 1992
when he would bring Kirsten for her appointments. She also
testified that she had one occasion to talk to Kirsten
thereafter, on September 20, 1995, pursuant to a telephone
request from Eric. Because of the confidentiality privilege,
Mirel was not allowed to testify concerning the nature and
content of any of her conversations with Kirsten.
Eric Johnson testified that since January 1993 he has lived
in a house in Bolingbrook with his current wife, her mother, her
sister and her niece. He is an architect and has worked in that
business for thirty years. His current employment began in April
1995. Eric's wife and sister-in-law work full time, and his
mother-in-law remains at home. There are four bedrooms in the
home, one of which is for Kirsten. Eric made a partial
contribution toward the down payment on the house but his wife is
solely obligated on the mortgage and note. Eric's income is
used, however, to pay the mortgage and other expenses. He does
not receive any financial contributions from his current wife's
family other than to buy food on occasion.
Eric testified that currently he is only able to see Kirsten
if Vera Howse or Esther Frierson "allow" him to see her. He
defined "allow" by saying "[t]hat means that she would not be
home, or they would not open the door, or they would not answer
the phone, or they would not let me see her." He stated that he
was told by Howse that he could see Kirsten on two or three
occasions although he wanted to see Kirsten every Saturday. He
stated that he attempted to see Kirsten at church but that
Kirsten was hidden from him. Eric estimated that since Barbara
died his attempts to visit Kirsten were thwarted by Howse or
Frierson on about 25 occasions. He denied that he told Howse
that she could keep Kirsten.
Eric also testified to a recent occurrence wherein Kirsten
lived with him and his wife for a nine-day period. He stated
that during that time he took her to church and to Rich Central
School. He attempted to enroll Kirsten at Bolingbrook High
School which had a program similar to the one she had been
enrolled in at Rich Central.
Eric further testified that he is willing and able to
participate in the day-to-day care decisions involving Kirsten.
He testified that he had cared for Kirsten on a full-time basis
during the period of December 1984 until June 1985 while Barbara
was hospitalized. During that time period, he took Kirsten to
school and picked her up, fed her, washed her and cared for her.
Eric stated that he was prepared to act as Kirsten's father and
guardian and to support and care for her.
On cross-examination, Eric stated that during his last
visitation with Kirsten, Kirsten asked to stay with him. He
stated that Kirsten had made that request before but that when he
would approach Howse he was told to talk to Howse's attorney.
Eric admitted that he recently wrote two letters to Rich Central
High School advising the school that Barbara had died and that
Kirsten could not be picked up from that school by anyone other
than Eric, his wife or his mother-in-law. He stated that he
wrote the letters after calling the school and being told that
Kirsten's records did not reflect Barbara's death.
Eric admitted that during the nine-day period that he kept
Kirsten he was cognizant of ongoing court proceedings to
determine who would be Kirsten's guardian. He denied having
knowledge that the court proceedings also dealt with the issue of
Kirsten's custody. He admitted that he returned Kirsten to Howse
the day after a court order was issued directing him to do so.
He also stipulated that he disobeyed several court orders with
respect to the payment of Kirsten's health insurance premiums and
that he was found in contempt for failure to comply with those
court orders. He stated that he made partial premium payments in
1991, 1992 and 1993 because he had lost his job and was trying to
start his own business during those years. He also said that the
1994 and 1995 premiums did not warrant payment because he had
other insurance coverage for Kirsten. He admitted that he never
petitioned the court to relieve himself of the insurance premium
obligations because of that alternate coverage.
With respect to child support payments, Eric admitted that
he did not make any payments when he was unemployed. He stated
that when he was working he made all payments to Barbara until
her death. Although he earned an income of $70,000 from May 1994
to May 1995, he produced four cancelled checks made payable to
Barbara during that time period totalling $1,050. He stated that
he had written receipts for cash payments he had made to Barbara
but that they were at his home. Eric admitted that after Barbara
died he made no support payments to Howse. He stated that she
did not ask for financial support and that he did not offer any
but that he offered to take Kirsten and pay for all her needs.
Eric further testified that he contacted Kirsten's school in
May 1994 to request that he be sent notice of any school
functions involving Kirsten. He was told that the school could
not include him as a person to be notified of events because the
computer at the school allowed for the listing of only one
address and that address was Barbara's.
The record reflects that Kirsten wrote a note to the trial
judge in which she expressed a preference to live with her
father. When questioned about that note by the trial judge in
chambers, Kirsten stated that her father told her to write the
note. She also stated that she wrote it because she did not know
what to do and in order to "cooperate." When asked where she
preferred to live, Kirsten stated that she preferred to live with
her aunt. She stated that she received love and affection from
her aunt and that when she was with her father she received
"negative feedback." Kirsten said she was not comfortable at her
father's house because she felt that she was "concealed" in one
room and because the house was so big and she had to go up steps
which she hated to do.
In its order granting Vera Howse's petition for appointment
of guardianship, the court noted that it had examined the entire
court file on Kirsten Johnson, all of the testimony presented at
the hearing and all of the exhibits entered into evidence. The
court noted that Eric Johnson had rendered insignificant
assistance for the last five years and had made payments to
Kirsten's estate for her health insurance premiums only pursuant
to the court's issuance of "rules to show cause" and writs of
attachment. The court also noted that Eric had not reimbursed
Kirsten's estate since 1993 even though he earned $70,000 in the
1994-1995 year. The court stated that the evidence was clear
that Howse was capable of meeting Kirsten's special needs and
gave considerable weight to Kirsten's preference for her aunt.
The trial court concluded that it was in Kirsten's best interest
that Vera Howse be appointed the guardian of her person and be
entitled to her custody.
On appeal, Eric first contends that the probate court did
not have subject matter jurisdiction to appoint Howse, a
nonparent, as guardian of Kirsten's person when he, Kirsten's
parent, was alive and willing to care for her. In support of
this argument, Eric relies upon section 11-5(b) of the Probate
Act of 1975 (the Probate Act) which states in pertinent part:
"The court lacks jurisdiction to proceed on a petition
for the appointment of a guardian of a minor if (1) the
minor has a living parent, adoptive parent or
adjudicated parent, whose parental rights have not been
terminated, whose whereabouts are known, and who is
willing and able to make and carry out day-to-day child
care decisions concerning the minor ***. There shall
be a rebuttable presumption that a parent of a minor is
willing and able to make and carry out day-to-day child
care decisions concerning the minor, but the
presumption may be rebutted by a preponderance of the
evidence." 755 ILCS 5/11-5(b) (West 1994).
Eric argues that no evidence was presented at the hearing to
rebut the presumption that he was willing and able to make and
carry out the day-to-day child care decisions concerning Kirsten
and, thus, in accordance with section 11-5(b) of the Probate Act,
the court lacked jurisdiction to proceed on Howse's petition for
guardianship and erred in proceeding to make a best interest of
the child determination with respect to Kirsten's custody.
Preliminarily, Howse contends that the essence of Eric's
argument is standing and that Eric is precluded from making any
standing contention because he did not raise standing as an
affirmative defense in his motion to dismiss. See In re Marriage
of Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345 (1995) (standing
is an affirmative defense that is waived if not raised within the
time of pleading (735 ILCS 5/2-619(a) (West 1994)). We disagree.
While Eric's motion below and his argument on appeal raise
the issue of subject matter jurisdiction, his contentions have
consistently been predicated on section 11-5 of the Probate Act
and, as such, implicitly raise standing. "Jurisdiction," as it
is used in section 11-5(b) of the Probate Act does not refer to
"jurisdiction" in the traditional subject matter sense. Subject
matter jurisdiction is constitutionally conferred upon the
circuit court. Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345.
The purpose of section 11-5(b) is to prevent the circuit court
from exercising its subject matter jurisdiction when the
petitioner lacks standing. Such a conclusion was reached in
cases construing the "jurisdictional" requirements for custody
proceedings filed under the Illinois Marriage and Dissolution of
Marriage Act (the Dissolution Act) (750 ILCS 5/101 et seq. (West
1994)). See Siegel v. Siegel, 84 Ill. 2d 212, 221, 417 N.E.2d
1312, 1316 (1981) (stating that the General Assembly did not use
the term "jurisdiction" in section 601 of the Dissolution Act in
the traditional sense of subject matter jurisdiction but rather
"in the sense of a limitation upon the exercise of the existing
jurisdiction"); Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345.
That term and the provision within which it appears was said to
have created a standing requirement. See In re Custody of
Peterson, 112 Ill. 2d, 48, 52, 491 N.E.2d 1150, 1152 (1986) (the
standing requirement for nonparents appears in section 601 of the
Dissolution Act); Schlam, 271 Ill. App. 3d at 795, 648 N.E.2d at
350 ("'[j]urisdiction' as the term is used in section 601 of the
[Dissolution] Act, refers to a standing requirement for persons
petitioning for child custody"). Thus, since Eric's motion to
dismiss argued lack of jurisdiction under section 11-5(b) of the
Probate Act, and since "jurisdiction" as it is used in that
provision refers to the standing requirement (see Schlam, 271
Ill. App. 3d 788, 648 N.E.2d 345), that motion preserved the
issue of standing for review.
Before a nonparent can petition for custody and demand a
custody hearing to determine the best interests of the child, the
nonparent must show that he has standing. E.g., In re Kirchner,
164 Ill. 2d 468, 649 N.E.2d 324 (1995); In re Marriage of
Thompson, 272 Ill. App. 3d 257, 651 N.E.2d 222 (1995) (unless
standing is established, court cannot proceed to determine which
locus of custody would serve the best interests of the child);
Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345; In re Marriage of
Haslett, 257 Ill. App. 3d 999, 629 N.E.2d 182 (1994). The
standing requirement is an acknowledgment of the superior rights
doctrine. Kirchner, 164 Ill. 2d 468, 649 N.E.2d 324; Peterson,
112 Ill. 2d 48, 491 N.E.2d 1150. See In re Estate of Barnhart,
232 Ill. App. 3d 317, 597 N.E.2d 1238 (1992) (superior rights
doctrine has been incorporated into the Probate Act). That
doctrine provides that "'[i]n child-custody disputes it is an
accepted presumption that the right or interest of a natural
parent in the care, custody and control of a child is superior to
the claim of a third person.'" Peterson, 112 Ill. 2d at 51, 491
N.E.2d at 1151 quoting In re Custody of Townsend, 86 Ill. 2d 502,
508, 427 N.E.2d 1231, 1234 (1981).
Here, whether Howse has standing to petition for
guardianship and custody of Kirsten depends upon whether she has
rebutted the presumption that Eric was willing and able to make
and carry out day-to-day child care decisions concerning Kirsten.
755 ILCS 5/11-5(b) (West 1994). See Thompson, 272 Ill. App. 3d
257, 651 N.E.2d 222 (rebuttable presumption in favor of parent
under section 601(b)(2) of the Dissolution Act); Barnhart, 232
Ill. App. 3d 317, 597 N.E.2d 1238 (presumption in favor of parent
in Probate Act). Whether a nonparent petitioner may have the
ability to provide a better environment for the child is not a
factor to be considered where standing is in issue so long as the
presumption that the natural parent is willing and able to care
for the child remains unrebutted. To compare the potential of
the nonparent against the parent when making a standing
determination would jeopardize the custodial rights of natural
parents such that any nonparent with better qualifications,
albeit a stranger, could be found to have standing to petition
for custody notwithstanding the established threshold adequacy of
the natural parent.
Nor can the child circumvent the superior rights doctrine as
embodied in the standing requirement of the Probate Act by
nominating a nonparent guardian. See Barnhart, 232 Ill. App. 3d
317, 597 N.E.2d 1238. This court is cognizant of the fact that
Kirsten signed Howse's petition and nominated Howse as her
guardian pursuant to section 11-5(c) of the Probate Act. 735
ILCS 5/11-5(c) (West 1994). That provision, which permits a
minor who is 14 years of age or older to nominate a guardian,
allows the court to consider the minor's preference where the
preference is expressed in favor of a person with standing.
Barnhart, 232 Ill. App. 3d at 322, 597 N.E.2d at 1241-42
(nomination of grandparents by granddaughter pursuant to section
11-5(c) of the Probate Act does not confer standing upon
grandparents).
Based upon the record before us, we do not believe that
Howse has met the burden of overcoming the presumption that Eric
was willing and able to make and carry out day-to-day care
decisions concerning Kirsten. See Thompson, 272 Ill. App. 3d
257, 651 N.E.2d 222 (standing under 601(b)(2) of the Dissolution
Act); In re Person & Estate of Newsome, 173 Ill. App. 3d 376, 527
N.E.2d 524 (1988) (standing under 11-5 of the Probate Act).
Although there was testimony at the hearing that Eric failed to
meet his monetary obligations with respect to the payment of
Kirsten's health insurance premiums, he testified that his
inability to do so was caused by his lack of income and failed
business venture. There also was evidence suggesting that Eric
had failed to meet his child support obligations but that
evidence was not conclusive and was refuted by Eric.
Notwithstanding any evidence in this regard, it should be noted
that Eric's financial shortcomings largely occurred after the
multi-million dollar settlement of Kirsten's personal injury
action. To that extent, Kirsten's needs and health insurance
coverage were not jeopardized since her estate had the financial
resources to pay for Kirsten's necessities and health insurance.
Finally, while there was some evidence to suggest that Eric's
visitation with Kirsten was sparse, there also was evidence to
suggest that several of Eric's attempts to visit with Kirsten had
been thwarted by her aunts.
There also was unrefuted evidence that at the time of the
hearing, Eric remarried, returned to full-time employment, and
lived in a home wherein his mother-in-law could care for Kirsten
while Eric and his current wife were at work. Eric testified
that he attended the same church in Chicago that Kirsten
attended. Eric further testified to his attempts to obtain
Kirsten's custody shortly after Kirsten's mother died and to the
numerous occasions, approximately 25, upon which his attempts to
visit with Kirsten were thwarted. Eric testified concerning his
attempts to locate an educational program that would be meet
Kirsten's needs at the high school near his home. He also
testified to his discussions with Mary Hawes, which she
corroborated, about Kirsten's placement in another school and
about his unsuccessful attempt to obtain notification from Rich
Central High School of that school's activities. The testimony
also showed that Eric had cared for Kirsten on a full-time basis
for two extended periods. No evidence was presented to dispute
those facts or to suggest that the care Eric provided to Kirsten
on those occasions was inadequate. Finally, there was unrebutted
evidence that for a period of one year, Eric brought Kirsten to
her psychotherapy sessions. When viewed in its entirety, the
evidence presented did not rebut the presumption that, at the
time of the hearing, Eric was willing and able to make and carry
out the day-to-day child care decisions concerning Kirsten.
In view of our determination that this matter warrants
reversal because Howse lacked standing, we need not consider
Eric's second argument in favor of reversal predicated upon the
allegation that he was denied a fair hearing.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is reversed and the cause is remanded for further
proceedings.
Reversed and remanded.
McNULTY, P.J. and HOURIHANE, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
284 F.2d 360
Raymond W. CLAWSON, Appellant,v.UNITED STATES of America, Appellee.
No. 16971.
United States Court of Appeals Ninth Circuit.
Dec. 6, 1960, Rehearing Denied Jan. 12, 1961.
Appeal from the United States District Court for the Southern District of California, Central Division; Leon R. Yankwich, Judge.
Russell E. Parsons, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U.S. Atty., Robert J. Jensen, Thomas R. Sheridan, Asst. U.S. Attys., Los Angeles, Cal., for appellee.
Before BARNES, HAMLIN and JERTBERG, Circuit Judges.
PER CURIAM.
1
The judgment of the district court finding appellant guilty of criminal contempt of court in violation of Title 18 U.S.C. 401(3) is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
67 P.3d 359 (2003)
2003 OK CIV APP 24
In the Matter of the ADOPTION OF BABY GIRL B., a Minor.
Anthony Noah and Choctaw Nation of Oklahoma, Appellants,
v.
Kelly B., Appellee.
No. 96,985.
Court of Civil Appeals of Oklahoma, Division No. 2.
February 11, 2003.
As Corrected March 20, 2003.
*361 Robert L. Rabon, Rabon, Wolf & Rabon, Hugo, OK, Gerald Kelly, Oklahoma City, OK, for Appellants.
Robert G. Boren, Rebecca P. Boren, Oklahoma City, OK, and Bob Smith, Purcell, OK, *362 and Virginia Frank, Edmond, OK, for Appellees.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.
Opinion by KEITH RAPP, Judge:
¶ 1 The Choctaw Nation (Nation) and Anthony Noah (Father) appeal the trial court's decision declining to vacate its order terminating Father's parental rights and finding the child (Child), referred to here as Baby Girl B., eligible for adoption without his consent. Nation also appeals the trial court's decision which denied Nation's Motion For Placement of Child.[1] Upon review, this Court, affirms in part, reverses in part, vacates the order terminating Father's parental rights, and remands for further proceedings.
BACKGROUND
¶ 2 The Child is an Indian child and Mother and Father are members of the Nation. The federal and State Indian Child Welfare Acts apply to this case. The judgment terminating Father's parental rights and finding the Child eligible for adoption without the Father's consent was essentially a default judgment. The first issue here is whether Father and Nation were properly and adequately notified of the proceeding leading to this judgment. Whether the trial court should have vacated the judgment at Father's request for good cause is collateral to this issue.
¶ 3 Adoption proceedings were originally filed in Oklahoma County. All parties, including the Child, were represented by counsel. The Nation and Father were parties and both were represented by the same attorney. The application of the Indian Child Welfare Acts was at issue.
¶ 4 On April 13, 2001, the Oklahoma County trial court ruled that the Acts applied. This ruling had the effect of invalidating Mother's waivers and relinquishments. The Oklahoma County court's Order recited that the parties had agreed upon or did not dispute certain facts. Among these facts were: (1) Father is a parent as defined by the Indian Child Welfare Act; (2) Mother and Father were not wed nor cohabiting, Father had not supported the Child; (3) Mother and Father are members of the Choctaw Nation and the Child is an Indian child; and, (4) the Child was not being taken from an existing Indian family for purposes of adoption.[2]
¶ 5 A minute entry indicates that the Adoptive Parents requested and were granted a stay in order to seek appellate relief. However, they dismissed the case. Then, on May 8, 2001, Mother executed a voluntary relinquishment of parental rights and consent to adoption and presented it to the District Court in Canadian County.[3] The record does not reflect any notice to or involvement by Father or Nation in the Canadian County matter or that the Child was represented there. The relinquishment also recites that the Mother agrees to transfer custody to Adoptive Parents. The relinquishment wholly fails to mention anything related to the facts concerning Indian heritage or the application of Indian Child Welfare Acts. The relinquishment and consent were approved by the judge in Canadian County.
¶ 6 Thereafter, on May 10, 2001, the proceedings leading to this appeal were filed in Cleveland County. Adoptive Parents filed an application to determine eligibility for adoption without Father's consent, pursuant to 10 O.S. Supp.2000, § 7505-4.2, for failure to provide support, and to terminate Father's parental rights. The application does not mention any information pertaining to Indian *363 heritage or application of Indian Child Welfare Acts.
¶ 7 On May 10, 2001, counsel for Adoptive Parents also executed and filed a "Notice of Adoption Proceedings" wherein the Indian heritage history is set forth, including the statement that "the natural father is known as Anthony Noah...." The Choctaw Nation was notified of intervention rights. However, the Notice states in paragraph 5 that "the natural mother will file an application with the court to proceed without the consent of the birth father. ..." (Emphasis added.)[4] This notice and Mother's relinquishment and statement of preferences were mailed certified mail to Nation and the Bureau of Indian Affairs, but the application is not shown to have been served.[5]
¶ 8 A notice of hearing of the Adoptive Parent's application was signed by the trial court and filed on May 10, 2001. This notice was directed to Father. It advised him of the relief sought, eligibility for adoption without his consent and termination of parental rights for failure to support. The notice advised that the hearing date was July 2, 2001, at 9:15 o'clock A.M. in the District Court of Cleveland County, but provided no street address.
¶ 9 The notice did not advise of any rights accompanying matters proceeding under Indian Child Welfare Acts. This includes a right to an attorney or provision for an attorney, or rights or procedures available through the Indian Tribe. Father resided in Broken Bow, Oklahoma, where he was personally served with the notice and the application on June 13, 2001.
¶ 10 In the interim, it appears that the judges assigned to the case in Oklahoma County and Cleveland County discussed where the case ought to be heard and decided that it should be heard in Oklahoma County. This discussion appears to have taken place without knowledge of counsel, but Adoptive Parents' counsel learned of the proposed transfer and filed a motion to vacate the transfer order on May 29, 2001. This motion shows a certificate of mailing to the attorney who acted as counsel for Nation and Father in the Oklahoma County proceedings. The filed document shows a notice that the motion will be heard on June 5, 2001, at 8:30 o'clock A.M.
¶ 11 On June 4, 2001, a motion to intervene for the purpose of resisting the motion to vacate the transfer was filed on behalf of Nation only. The trial court vacated the transfer. A minute order recites the action and states further that "July 3, 01 still pends." According to a letter from the Cleveland County judge to the Oklahoma County judge, counsel for Nation and the attorney shown as counsel for Mother agreed that the matter should proceed in Cleveland County.[6]
¶ 12 On June 13, 2001, counsel for the Nation filed a Motion for Different Placement Preferences. The motion sought to have the statutory preferences of 25 U.S.C. § 1915 followed rather than Mother's statement of preference for Adoptive Parents. This motion was mailed to all counsel, but, again, the mailing did not include the Father.
¶ 13 On July 2, 2001, the Cleveland County trial court entered an order that determined the Child eligible for adoption without Father's consent and terminated Father's parental rights. Father did not appear, so the determination was by default as to him. The trial court made a finding that Father had been served notice more than fifteen days prior and approved the notice to him. The order refers to Father as the "putative father." The determination makes no mention of anything related to Indian matters or of Nation. There is no indication in the record that the order was served on Father or Nation.
*364 ¶ 14 However, on July 6, 2001, Nation and Father filed a joint motion to invalidate the July 2, 2001 proceeding based upon lack of notice to Nation and inadequate notice to Father, all as required by the federal and State Indian Child Welfare Acts. In addition, Father filed a separate motion to vacate on the ground of unavoidable casualty.
¶ 15 At the hearing on the motions, Father testified that he had been served notice, but he did not discuss the matter with counsel for Nation who had represented him in Oklahoma County.[7] Father related that he and his family left Broken Bow at about four o'clock on the morning of July 2, 2001, to come to Norman for the hearing, and arrived in Norman at about 8:30 o'clock A.M. They did not know where to go and asked directions several times but got lost. They arrived at the courthouse at about 10:00 o'clock A.M., proceeded to the trial judge's office, and were informed that the hearing was over. Counsel for Nation also did not appear, and at that time he had not entered an appearance as counsel for Father.
¶ 16 On the placement issue, Nation presented the great-grandmother of the Child, who testified as to her willingness and ability to care for the Child and to provide a residence. Next, a family counselor employed by Nation testified as one knowledgeable about Indian family life. The witness explained about cultural deprivation and the problems associated with that condition as an individual matures. An earlier witness testified as to the services, foster homes, and facilities available from the Nation along with testimony that the application to terminate Father's rights document had not been received by the Nation.
¶ 17 Mother testified on behalf of Adoptive Parents. She stated that she asked Nation for assistance, but was refused help. However, on cross-examination, she stated that she had previously asked for help with her other children before she was pregnant with the Child and did not ask for the Nation's assistance because she assumed it would be denied. This was her third child, and one of the other two children is in the custody of the Department of Human Services. She eventually met the Adoptive Parents through their counsel. She formally expressed her desire that the Child be adopted by them.
¶ 18 The Adoptive Parents presented a specialist in child psychology who testified as to bonding in general and that the Child bonded with the Adoptive Parents. This individual was not an expert in Indian family life or culture.
¶ 19 The trial court denied relief. The court found that notice was provided, that custody would not be changed, and that the Child's eligibility for adoption remained in force. Nation and Father appeal.
STANDARD OF REVIEW
¶ 20 The appellate court will exercise its "plenary, independent and non-deferential authority [when] reexamin[ing] a trial court's legal rulings." Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103 n. 1; Spielmann v. Hayes, 2000 OK CIV APP 44, ¶ 8, 3 P.3d 711, 713.
¶ 21 The standard of review for a trial court's conclusion regarding a child's eligibility for adoption without the consent of the biological parent is whether it is supported by the clear weight of the requisite clear and convincing evidence.[8]In re Adoption of R.W.S., 1997 OK 148, ¶ 10, 951 P.2d 83, 86 (reh'g.denied); In re Adoption of J.L.H., 1987 OK 25, ¶ 12, 737 P.2d 915, 918. However, the issue on appeal is whether the court erred in failing to vacate what was essentially a default judgment. The test for measuring the legal correctness of the trial court's ruling on a motion to vacate or set aside judgment is whether sound discretion was exercised upon sufficient cause shown to vacate, modify, open or correct its earlier decision, or to refuse the relief sought. VanNort v. Davis, 1990 OK CIV APP 95, ¶ 9, 800 P.2d 1082, 1085.
*365 ANALYSIS AND REVIEW
¶ 22 Both appeals, as briefed here, concentrate on the issue of whether notice was adequate and complied with governing law. In addition, Nation challenges the trial court's decision denying its motion for different placement.
¶ 23 This Court takes cognizance of the policy underlying the federal and State Indian Child Welfare Acts. When enacting the Indian Child Welfare Act, Congress found:
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children...;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
25 U.S.C. § 1901.
¶ 24 "Indeed, the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44, 109 S.Ct. 1597, 1606, 104 L.Ed.2d 29 (1989). The law is intended not only to protect the rights of Indian children, but also the interests of Indian Tribes in survival. Thus, care must be taken in such cases to avoid a purely Anglo-American perspective.
Father's Motion to Vacate
¶ 25 In the petition-in-error, a point of error was raised about Father's late arrival at court and being lost. Although not referenced there, this alludes to unavoidable circumstances allegations made by Father in his motion to vacate under 10 O.S. Supp.2000, § 7505-4.1(H). However, the issue was not briefed. In fact, Section 7505-4.1(H) is not cited in the appellate brief. This issue is thus waived. See State ex rel. Jones v. Baggett, 1999 OK 68, 990 P.2d 235 n. 5.
Nation's and Father's Motion to Vacate
¶ 26 25 U.S.C. § 1914 authorizes the Child's Tribe, here Nation, and "any parent from whose custody such child was removed" to petition the court to vacate its decision upon a showing of a violation of Sections 1911, 1912, and 1913 of Title 25. The challenge here is to the notices given to Father and to Nation.
¶ 27 Adoptive Parents take the position that the notice to Nation complies with the law; that Father's notice complied with the applicable law that Father is not a parent under the Indian Child Welfare Acts and is not a custodian of the Child, so he has no right to specialized notice and no standing. The Adoptive Parents' position is rejected for the following reasons.
¶ 28 The facts here do not fit precisely into the statutory scheme because the Child has never been in Father's custody, which is not disputed. Adoptive Parents argue that Father's lack of custody means, first, that he does not have standing here, so the stringent burden of proof does not apply. Thus, Section 1914 authorizes a parent "from whose custody such child was removed" to seek invalidation of the proceedings. In addition, the expert witness requirement and the standards of proof in Section 1912(e) and (f) relating to placements and terminations insert the phrase "the continued custody of the child" into consideration, so Adoptive Parents' second argument is that the expert witness rule does not apply here.
¶ 29 The facts elicited below indicate that Mother and Father had a short liaison of about three weeks. When she learned that she was pregnant, she did not contact the Nation for assistance, believing that it would be futile. She contacted Adoptive Parents' counsel, and proceedings were started in Oklahoma County, where Father was served with notice. He testified without contradiction *366 that his first knowledge of the Child occurred after the Child's birth and as a result of the Oklahoma County matter. He did not know that Mother had been pregnant.[9]
¶ 30 Father arranged for a DNA test and filed an affidavit in the Oklahoma County matter acknowledging paternity. He also then sent some support money in care of Adoptive Parents' attorney. Neither the amount of support sent nor any support order are reflected in the record here.
¶ 31 In three cases the Oklahoma Supreme Court has ruled that, under the facts of those cases, the absence of custody with the father rendered the Indian Child Welfare Acts inapplicable to the case situations. In In re Adoption of D.M.J., 1985 OK 92, 741 P.2d 1386, custody had been previously awarded to the mother in a prior divorce action. The father's parental rights were terminated for nonsupport and he appealed, joined by the Cherokee Nation, raising issues under the Indian Child Welfare Act. The case of In re Adoption of Baby Boy D., 1985 OK 93, 742 P.2d 1059, involved an Indian father, a non-Indian mother, and existing awareness of fatherhood on the part of the father coupled with apparent disregard for the child.
¶ 32 The facts of In re S.C. and J.C., 1992 OK 98, 833 P.2d 1249, involved an Indian father who sought to invalidate a placement decision made after the non-Indian mother's parental rights had been terminated.[10] The father knew about the children. Moreover, efforts were made to place the children with father, but studies of his home, including one by the Cherokee Nation, indicated that the best interests of the children would not be served by placement with father. There, the Cherokee Nation only sought visitation for the father, so it cannot be said that the Indian Child Welfare Acts had no role in the case.
¶ 33 A common thread among these cases is that the father knew about the children in each case. Here, it is unrefuted that Father first learned of the Child and his parenthood as a result of the Oklahoma County proceedings. Upon learning of his parenthood, he then took steps to acknowledge paternity and provide support. The case was then dismissed by Adoptive Parents.
¶ 34 In the present proceedings, no determination has been made that Father has had a reasonable opportunity to establish custody or that he has waived any right to seek custody or placement of the Child in accordance with the Indian Child Welfare Acts. Unfortunately, his claim of unavoidable circumstances in the default termination portion of this case has not been preserved for review. Nevertheless, this Court distinguishes the prior cases and holds that when, as here, a father has no reasonable notice of fatherhood, then the Acts do not preclude him from asserting rights under those Acts simply because he had not been, through no fault of his own, a custodial parent.[11]
¶ 35 This result is consistent with the policies and purposes of the Acts to preserve and protect the interests of Indian children, Indian Tribes, and Indian families, and to keep Indian children in homes that reflect Indian culture and values. 25 U.S.C. § 1902; 10 O.S. Supp.2000, § 40.1. Moreover, it must be observed that custody is immaterial as to the interest of the Nation and application of the Oklahoma Act. 10 O.S. Supp.2000, §§ 40.1, 40.3(B).
¶ 36 On the question of notice, this Court holds that neither of the notices complied with applicable law, but that the Nation was not prejudiced by defective notice to it because *367 it intervened prior to the termination proceedings. However, Nation may seek to vacate the proceedings due to the defective notice to Father, and, under the circumstances, the trial court should have vacated the proceedings and erred in failing to do so.
A. Notice to Father
¶ 37 Nation and Father argue that the notice served upon Father did not comply with the provisions of 10 O.S. Supp.2000, § 40.4.[12] The notice deficiencies include: (1) lack of tribal identification of the Child; (2) lack of statement of rights; and (3) advice regarding right to counsel.
¶ 38 First, if Father is entitled to the notice required under the Indian Child Welfare Act, the notice to Father did not meet the statutory requirements. Adoptive Parents do not argue otherwise, but maintain that Father is not a parent entitled to Section 40.4 notice because he is an unwed father. This Court rejected, above, their argument that he has no standing because he never had custody.
¶ 39 The statute, 25 U.S.C. § 1903(9), excludes from the definition of "parent" the "unwed father where paternity has not been acknowledged or established," which is not the case here. Under Section 1914, the authority to petition to vacate is given to a parent from whom custody was removed for violations of Sections 1911, 1912, or 1913.[13] Section 1912, as amplified by State statute, requires notice, provides for right to counsel, access to information, prerequisites to termination decisions, and a "beyond a reasonable doubt" standard of proof for termination proceedings coupled with a requirement to support the proof with expert testimony.
¶ 40 Here, there was undisputed evidence that, in the Oklahoma County matter, Father had taken a DNA test which established his paternity. Counsel for Adoptive Parents referred to this test in statements to the Cleveland County trial court. Now, Adoptive Parents argue that Father has not complied with the statute so he is not an "acknowledged" parent. They refer to 10 O.S. Supp.2000, § 70(B)(1), which calls for an affidavit from Mother and Father. However, they have ignored and failed to discuss Section 70(B)(2), which provides for an alternative means to establish paternity by means of a scientific test.
¶ 41 Next, the uncontradicted evidence presented here also demonstrated that Father acknowledged paternity by affidavit in the Oklahoma County proceedings based upon a scientific test showing him to be the biological father of the Child. Adoptive Parents argue that the record does not support a conclusion that a proper acknowledgment had been made by Father prior to the initiation of the Cleveland County proceedings. First, this Court holds that sufficient evidence was placed before the trial court so that further inquiry was mandatory in order to ascertain whether Father had previously *368 qualified as a "parent" under the law and thus entitled to the full range of notice. The fact of Indian relationships coupled with the strong legislative policies here involved, compel full examination and determination of the facts so that State laws or procedures do not deliberately or inadvertently work to frustrate the interests involved or the application of the Acts. Thus, for example, a parent cannot frustrate the purposes and intent of the Acts by the expedient of changing domicile under state law. In re Adoption of Halloway, 732 P.2d 962, 966 (Utah 1986).
¶ 42 Second, the Order entered in the Oklahoma County cause was before the trial court here. The Order stated that the parties had agreed to and did not dispute certain facts, one of which was that Father is a parent as defined in the Indian Child Welfare Acts. Moreover, Adoptive Parents did not contest applicability of the Indian Child Welfare Acts when the case was filed in Cleveland County. Adoptive Parents offer no reason for ignoring the statements in the Order. The existence of such statements adds an additional reason to inquire into Father's legal status as a parent and to make a specific finding as to Father's legal status as a parent and applicability of the Acts.
¶ 43 Moreover, this Court notes that under the Oklahoma Act, notice is to be provided "to the parents." 10 O.S. Supp.2000, § 40.4. The Oklahoma Act does not include the federal definition of "parent" that excludes the unwed father where paternity has not been established or acknowledged. 25 U.S.C. § 1903(9).
¶ 44 Nevertheless, according to Adoptive Parents, the federal definition of parent applies here because the Oklahoma Act does not apply unless the federal Act applies. In support of this position they cite In re Adoption of D.M.J., 1985 OK 92, ¶ 9, 741 P.2d 1386, 1388, where the Court made such observation. However, the context shows that the Court also observed that the Oklahoma Act clarified Oklahoma's role, as well as expressed this State's intent to "cooperate fully with Indian tribes in Oklahoma in order to insure that the intent and provisions of the Federal Indian Child Welfare Act are enforced." Id. Adoptive Parents point to no authority limiting the interpretation of "parent" in the Oklahoma Act by the same limitation contained in the federal Act nor can they ignore Father's established paternity.
¶ 45 Here, the trial court's Order cryptically denies Father's Motion to Vacate, stating notice was provided. Father did receive some notice. He tried to come to the court, became lost, and he was tardy. However, the notice elements missing here clearly go to more than the notice of time and date of a hearing.[14] Obviously, Father was not represented by chosen or appointed counsel at a critical stage of these proceedings. No evidence exists showing he had waived a right to counsel. In fact, he testified that he believed he was represented by Nation's counsel, but that was not the case at that time.
¶ 46 Adoptive Parents started a new action for adoption. They were under an obligation to furnish adequate notice and wholly failed to do so. They have not shown any excuse for the failure to give adequate and correct notice, nor any basis to excuse the failure such as lack of prejudice. The trial court has not made any findings regarding Father's entitlement to notice as provided by the Indian Child Welfare Acts, but this Court holds that Father, under the record presented, was entitled to notice as provided in these Acts.
¶ 47 Failure to provide adequate notice is fatal to the proceedings. Due Process demands that notice reasonably inform a person that his or her legally protected interest may be adversely affected. A purpose of notice is to afford an opportunity to defend. Judicial notice cannot depend upon inferences to be gathered from outside sources or other events. Clarity and completeness are essential to preservation of the procedural safeguards afforded by Due Process of Law norms. Lack of specificity renders the safeguards meaningless. In re C.G., 1981 OK 131, ¶¶ 9-10, 637 P.2d 66, 68-69.
Notice To Nation
¶ 48 The notice to Nation stated that the termination and adoption without consent *369 petition "will" be filed. It was properly mailed. In the hearing on the motion to vacate, counsel for Adoptive Parents stated, "We set out in that notice the fact that the natural mother would be filing an application with the court to proceed without the consent of the birth father." The application had in fact been filed at that time. Thus, the notice was misleading and it has not been shown that the application or a notice of hearing date was served on Nation.
¶ 49 However, Nation intervened to argue for a transfer of the case's venue back to Oklahoma County. The court's letter to the Oklahoma County judge and the minute Order indicate an agreed disposition of the transfer issue. Neither the order nor the letter reflect the correct day for the termination without consent hearing, and, in the case of the letter, nothing is said about a hearing date.
¶ 50 Nation's intervention states that Nation resists Adoptive Parents' "motion to vacate transfer order." The Adoptive Parents' motion to vacate transfer order had been mailed to counsel for Nation. The body of the motion recites a history of the case, including the filing of an application for adoption in Cleveland County. The motion continues by saying that Adoptive Parents' counsel conferred with Nation's counsel about the filing, his representation in the matter, and whether the issue for decision was if grounds existed for termination of the birth father's rights as a parent.
¶ 51 Then, Nation filed its motion concerning placement preferences. The content of this filing indicates awareness of at least some of what had been filed in the case, such as Mother's consent to adoption and preference for the Adoptive Parents. Moreover, counsel for Nation had been to Cleveland County on June 5 and June 6, 2001, but the record is silent regarding whether he availed himself of the opportunity to view the court file. Counsel for Nation was in contact with counsel for Adoptive Parents, but again, the record is silent regarding any discussions about the filing of the application.
¶ 52 On the record here, it appears that counsel for Adoptive Parents and counsel for Nation were equally remiss in the matter of notice, but it cannot be said that the Nation was itself prejudiced. In addition, Nation did not seek to remove this action to a Tribal Court, nor did it request additional time as contemplated by 10 O.S. Supp.2000, § 40.4(3)(c). Thus, the record fails to show that Nation lacked sufficient information so as to enable it to intervene and take such action as it deemed necessary.
¶ 53 Moreover, regardless of whether it might have been prejudiced by a decision terminating Father's parental rights, Nation does not present its case on that ground. Nation chose the level of involvement before the trial court in Cleveland County, as shown by its pleadings, and limited its involvement to issues of placement and adequacy of notice. Thus, although Father and Nation share counsel and a common concern about adequacy of notice and conformity to legal requirements, Nation did not seek to act as a surrogate for Father to resist, on the merits, termination of his parental rights.
¶ 54 Therefore, even though the notice to Nation was misleading, the trial court's decision not to invalidate on this ground is not clearly error because of the absence of prejudice to Nation.
Placement Decision
¶ 55 Here, two issues are presented with respect to placing the Child with the Adoptive Parents pending further proceedings. The first issue asks whether good cause has been given not to follow the statutory preference scheme. The second issue involves determining who bears responsibility to involve Indian Tribes in the placement decisions, as well as the legal ramifications following failure to conform to that responsibility.
A. The Good Cause Issue
¶ 56 The statutes establish a preferential scheme for placement of a child in sundry cases, including preadoptive placements. 25 U.S.C. § 1915.[15] The Oklahoma statute *370 adopts the federal preference scheme. The significant language here is the mandatory direction to give preference as directed under the Act in the "absence of good cause to the contrary" because this language manifests a presumptive preference in favor of Indian placement.
¶ 57 This language presents three questions for consideration at this juncture:
(1) Who bears the burden to overcome the presumption established in the statute;
(2) What constitutes "good cause"; and,
(3) What is the applicable standard of proof.
¶ 58 This Court holds that a party who advocates a placement other than prescribed by statute bears the burden to establish good cause to disregard the statute. This Court next holds that "good cause" involves multifaceted determinations concerning the best interests of the child or children involved and the Tribal interest, keeping in mind the fostering of the purposes and policies of the Indian Child Welfare Acts, the need for expert testimony, and the Bureau of Indian Affairs Guidelines.[16] Last, this Court holds that the "clear and convincing" standard of evidence applies when a trial court considers whether a party who has the burden of proof has established "good cause" to disregard the preadoption placement preferences in the statute.
1. Burden of Proof
¶ 59 The clear language of the statute establishes a presumptive placement scheme, and not by default in the absence of some alternative. Thus, the trial court must be convinced to depart from the statutory scheme. The party seeking that result then must persuade the court. In re Adoption of Riffle, 277 Mont. 388, 922 P.2d 510, 514 (1996); see In re Adoption of F.H., 851 P.2d 1361, 1363 (Alaska 1993). Moreover, the Guidelines state:
Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences.
Guidelines, 44 Fed.Reg. at 67586.
¶ 60 Here, the burden of proof rested with Adoptive Parents as to why the statutory scheme should not be followed.
2. What constitutes "good cause".
¶ 61 The federal Act provides that the preadoption preferences shall be followed, but does not include a definition of *371 what constitutes "good cause" not to follow the statutory scheme. The Guidelines do not fill in the gap, although the Guidelines do provide a list of factors.[17] The factors listed in the Guidelines reiterate the provisions of the statute, Section 1915(b).[18] As a result there has been some disparity in court treatment of the concept of "good cause".
¶ 62 One line of authority looks to the traditional best interests of the child approach. The Court in In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983), directed the trial court to consider the good cause issue keeping in mind that the Act did not override the best interest of the child test.
The Indian Child Welfare Act does not change the cardinal rule that the best interests of the child are paramount, although it may alter its focus. The legislative history of the act states explicitly that the use of the term "good cause" was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child. Factual support in the record in the trial court as to "good cause" for failure to comply with statutory child placement preference directives are necessary for appropriate appellate review.
Id. at 791.
¶ 63 Other cases take the approach that the Act's scheme and design incorporate the child's best interests. These cases deem the Act to be a presumptive statement of the child's best interests. In re Adoption of Riffle is an example.
We believe, however, that a finding of good cause cannot be based simply on a determination that placement outside the preferences would be in the child's best interests. The plain language of the Act read as a whole and its legislative history clearly indicate that state courts are a part of the problem the ICWA was intended to remedy. See Mississippi Band of Choctaw Indians, 490 U.S. at 44-45, 109 S.Ct. at 1606-07. ... The best interests of the child standard, by its very nature, requires a subjective evaluation of a multitude of factors, many, if not all of which are imbued with the values of majority culture. It therefore seems "most improbable" that Congress intended to allow state courts to find good cause whenever they determined that a placement outside the preferences of § 1915 was in the Indian child's best interests.
Id. at 514.
¶ 64 Other courts take a more expansive approach. Thus, factors in addition to a child's best interest are taken into account to determine whether "good cause" exists to depart from the placement preferences. In re A.E., J.E., S.E., and X.E, 572 N.W.2d 579 (Iowa 1997).
Good cause is a matter of discretion, and discretion must be exercised in light of many factors. These include but are not necessarily limited to the best interests of the child, the wishes of the biological parents, the suitability of persons preferred for placement, the child's ties to the tribe, and the child's ability to make any cultural adjustments necessitated by a particular placement.
Id. at 583.
¶ 65 The same "good cause" problem exists when the decision is whether to reject transfer to a tribal court. 25 U.S.C. § 1911(b). Again, courts are split on whether to consider the child's best interests.[19] Some courts find that the child's best interests are integral to decision-making involving children so that such interest must be an element for consideration at every stage of the proceeding. In re Guardianship of J.O., 327 N.J.Super. *372 304, 743 A.2d 341, 348-49 (2000). The Court in the case of In re Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1250-52 (Ariz.Ct.App.1991), ruled that a child's best interest was a factor, along with the Guidelines.
¶ 66 Other courts simply state that a child's best interest is a factor, without elaboration, but in all of these cases additional factors and the Guidelines were also present. Matter of M.E.M., 195 Mont. 329, 635 P.2d 1313, 1317 (1981) and In re Robert T., 200 Cal.App.3d 657, 246 Cal.Rptr. 168, 174-75 (1988), provide examples. In the case of Matter of M.E.M., the Court directed that best interests of the child, in addition to the Guidelines, be considered on remand.[20]
¶ 67 The Oklahoma Supreme Court, citing Matter of M.E.M., has stated that best interest of the child is a factor. In re N.L., 1988 OK 39, 754 P.2d 863. However, the other factors listed in the statute must also be considered and failure to do so constitutes reversible error.
A finding of "good cause to the contrary" is predicated upon the court's consideration of the placement categories specified. Where no inquiry occurs as to whether the child's tribe has licensed, approved, or specified a foster home, the court has not adequately considered such a placement. We remand the case for a new dispositional hearing because the record does not disclose that the trial court afforded placement preference to the categories specified in 25 U.S.C. § 1915.
On remand the court should consider whether the "good cause" exception in § 1915 is met by the child's best interests. In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785, 791 (1983).
Id., 1988 OK 39 at ¶¶ 36-38, 754 P.2d at 870.
¶ 68 The Oklahoma Supreme Court's citation to In re Bird Head, coupled with the directive to examine and apply the statutory preferences aligns it with the expansive view line of authority. Therefore, this Court holds that, under the authority of In re N.L., a child's best interest is a criterion to consider, albeit not the sole criterion, because other factors, including those set forth in the statutes and the Guidelines must also be considered.[21]
¶ 69 Further elaboration is called for at this juncture because "good cause" is not defined. Good cause must be viewed in two contextsgood cause that is personal to the children, and good cause that is extrapersonal.[22]
¶ 70 The former pertains to the nurture, care, and welfare of the children and, when Indian children are involved, exposure to and cultivation of the social and cultural aspects of Indian life, their Indian culture, and Indian heritage.[23]
¶ 71 Factors relating to good cause personal to children are found in Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex.Civ.App.1995), where it is stated:
The best interest of the child test in the Anglo-American legal systems considers a number of factors: (1) the desires of the child; (2) the emotional and physical need of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not *373 a proper one; and (9) any excuse for the acts or omissions of the parent.
Id. at 168.
¶ 72 The extrapersonal context of best interests refers to the means, resources, and procedures available and used to preserve and protect the personal best interests of the children and to the Tribal and cultural interests specially involved. Thus, the courts consider this aspect of best interest when they hold that the FICWA and the Guidelines apply. Good cause in the context of the FICWA has often been examined in relation to extrapersonal best interest matters.[24]
¶ 73 The trial court's task is to engage in a fact-finding process leading to a determination of the children's best interests, yet keeping in mind the permanent facts that Indian children and an Indian nation are involved. Thus, while the foregoing components of best interests from Yavapai-Apache Tribe v. Mejia are not exhaustive, the list, in conjunction with the Indian aspects of the case and the need to view the case from a different perspective, do indicate a number of relevant considerations. However, when the best interests standard is used, care must be taken to avoid a purely Anglo-American point of view.[25] In addition, the best interests inquiry should be consistent with the best interests inquiry on final placement.[26]
iii. The Standard of Proof
¶ 74 Having rejected Adoptive Parents' arguments arising from Father's lack of custody and his legal status as a parent, this review now proceeds to consideration of the standard of proof applicable here. The federal Indian Child Welfare Act establishes burdens of proof for some determinations under the Act, however, Section 1915(b) does not specify the degree of proof necessary to establish good cause to disregard the statutory placement preferences, in cases such as the one before this Court. Similarly, the Guidelines do not provide an answer.
¶ 75 By comparison, an order effecting a foster care placement requires evidence of a clear and convincing quality that continued parental custody will be harmful and the "beyond a reasonable doubt" burden applies to termination orders.[27] 25 U.S.C. §§ 1912(e)-(f).
¶ 76 The Court in In re Adoption of F.H. authorized a preponderance of the evidence test, but also expanded the scope of consideration beyond a child's best interest to include the wishes of the biological parents, the suitability of the persons preferred for placement, the child, the child's tribal ties, and the standards prescribed in the Act. Id. 851 P.2d at 1363-64.
¶ 77 This Court holds that, in the specific context of Section 1915(b) placements, the party opposing the statutory preferences must establish good cause according to the "clear and convincing" evidence standard.
*374 ¶ 78 This holding is consistent with the standard of proof applicable to subsequent stages where "clear and convincing" or even the "beyond a reasonable doubt" standards apply. In addition, use of the "clear and convincing" standard will foster the policy of the FICWA and the preferences stated therein and will assist with the effort to avoid inadvertent interjection of cultural bias into the proceeding.[28]
iv. An Additional Factor
¶ 79 The Oklahoma Act adds the additional requirement to utilize the Indian Tribe's services "to the maximum extent possible" in securing placement. 10 O.S. Supp.2000, § 40.6; In re N.L., 1988 OK 39 at ¶¶ 36-38, 754 P.2d at 870. The services of Nation were not utilized at all, so an inquiry here must also consider whether the failure to utilize the services constitutes error.[29] This, in turn, necessitates a determination of whether, under the facts, the requirement applies.
¶ 80 Section 40.6 states, in part:
In all placements of an Indian child by the Oklahoma Department of Human Services (DHS), or by any person or other placement agency, DHS, the person or placement agency shall utilize to the maximum extent possible the services of the Indian tribe of the child in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act. (Emphasis added.)
¶ 81 Mother testified that she had two prior children and had asked the Choctaw officials for assistance. She testified that she was informed that she had to reside within a certain area to receive assistance. Thus, according to her, when she learned she was pregnant with the Child in this case, she did not seek assistance believing it would be a futile effort, but contacted one of the attorneys appearing in this matter for Adoptive Parents and met Adoptive Parents through that contact.
¶ 82 This Court holds that every attorney involved in matters concerning Indian children subject to the Indian Child Welfare Acts is under an affirmative duty to insure full and complete compliance with these Acts. This Court recognizes that an attorney who is solely an advocate for prospective adoptive parents may, in the course of that advocacy, argue that good cause and the best interest of the child favor the adoptive parents. However, this Court further holds that this same attorney, while acting solely as an advocate for prospective adoptive parents, qualifies as "any person" under Section 40.6, when the attorney becomes involved to the extent of being an intermediary between a parent and prospective adoptive parents and then participating in legal proceedings leading to placement of the Indian child.[30] Moreover, counsel for Adoptive Parents received support money from Father for the benefit of the Child after the Child's birth.
¶ 83 This conclusion follows first from the strong policy of the Indian Child Welfare Acts to involve and protect tribal interests. It also follows from those cases such as In re Adoption of Halloway which guard against indirect obstacles to the accomplishment of the purposes and policies of the Acts. There, an Indian child apparently abandoned by its mother, was moved by an aunt from the Reservation for the purpose of changing *375 domicile so as to avoid application of the federal Act. Under Utah law, all steps necessary to change domicile had occurred. Id., 732 P.2d at 968-69. Nevertheless, the Utah Supreme Court ruled in favor of the Navajo Nation, finding that the policies and purposes of the Act were paramount.
¶ 84 Thus, this Court further holds that finding of compliance with Section 40.6 is an element of the "good cause" inquiry. Here, compliance has not occurred.
CONCLUSION
¶ 85 The notices here are defective and do not pass muster. While Nation may not have been prejudiced, Nation and Father can challenge the proceedings, including the notice to Father. The termination of Father's parental rights was essentially a default judgment, and does not purport to deal with or touch upon any of the issues of Indian law applicable here.
¶ 86 Next, the trial court has not, by its order, delved into the issues and made the requisite determinations concerning placement issues. Initially, it cannot be said from a review that the trial court correctly placed the burden of proof or applied the correct standard of proof with respect to the placement decision. Also, the evidence presented by the Adoptive Parents failed to meet the "qualified expert" requirements of the Acts.
¶ 87 The trial court's order denying the motions to vacate and denying the motion for different placement preferences is reversed. The order terminating Father's parental rights is vacated. This matter is remanded to the trial court for the purpose of determining, after proper notice, whether Father's parental rights should be terminated and to determine, based upon the rulings made by this Court, what appropriate placement should occur for the Child or whether, if the Nation should request, that the matter should be transferred to the Tribal Court of the Nation.
¶ 88 REVERSED AND REMANDED WITH INSTRUCTIONS.
COLBERT, P.J., concurs, and GOODMAN, J., dissents.
GOODMAN, J., dissenting:
¶ 1 I respectfully dissent to the majority's statutory interpretation. Further, I dissent to the majority's imposition of an additional, ambiguous, and unspecified duty on an attorney to follow the requirements of the state and federal Indian Child Welfare Acts when the attorney is already under a sworn duty to abide by all laws applicable in this state, which presumably includes all Indian Child Welfare Acts. The majority states that making an attorney responsible to follow all Indian Child Welfare Acts is analogous to the duty imposed on an attorney to follow the Fair Debt Collection Act. I respectfully disagree. The Fair Debt Collection Act applies to an attorney who presumably is no longer an advocate for his client because he is now trying to collect a debt from the client, and thus is now in the relationship of a creditor to the client. This differs from an attorney who is always in an attorney-client relationship with a potential adoptive parent and is never in an adversarial position to that client.
NOTES
[1] The "Appellees" are not listed in the caption of the petition-in-error but that pleading was served on the anonymous adoptive parents (Adoptive Parents), and Child's mother, Kelly Bohanon (Mother). All of these persons have filed an Answer Brief here and will be deemed the Appellees in this Court. Child was not represented before the Cleveland County trial court and has no attorney here. Mother has relinquished her parental rights and consented to adoption. Mother's decisions are not before this Court for review.
[2] At the hearing on his motion to vacate held in Cleveland County, Father acknowledged that he was the Child's parent and testified that he filed an affidavit of paternity in Oklahoma County. Transcript, August 7, 2001, page 33.
[3] Mother was represented by counsel. Counsel for Adoptive Parents was also present.
[4] Record, page 3.
[5] The application has no certificate of service. Record, page 1-2. On August 13, 2001, counsel for Adoptive Parents filed an affidavit of mailing listing only the Notice and documents other than the application. Record, page 70. The mail receipts are dated May 14, 2001.
[6] It appears from the statement of counsel at the hearing that the June 5, 2001, hearing was attended by all counsel, but was postponed to the following day and to a different location due to lack of a reporter. Counsel for Nation stated that he returned but was unable to locate the new location until after the matter was heard.
[7] At all times involved in this case, whenever Father was represented he was represented by the same attorney that represents Nation.
[8] See In re S.B.C., 2002 OK 83, 64 P.3d 1080.
[9] Transcript, July 10, 2001, page 55.
[10] The "existing Indian family" controversy has specifically been eliminated from these proceedings by the parties. Moreover, here Mother is an Indian whereas in In re S.C. and J.C. the mother was non-Indian.
[11] Compare Miller v. Miller, 1998 OK 24, 956 P.2d 887, where the facts indicated that the mother fraudulently led the father to believe he was the father. The Court held that a true claim of an existing pregnancy coupled with a false representation that the child is that of the proposed spouse, states a fraud claim. Thus, a father could deny paternity when the true facts were withheld. This Court perceives no legal reason to find that the obverse will not applya father may assert paternity, and all rights associated therewith, when the true facts have been withheld from him.
[12] Section 40.4 provides:
In all Indian child custody proceedings of the Oklahoma Indian Child Welfare Act, including voluntary court proceedings and review hearings, the court shall ensure that the district attorney or other person initiating the proceeding shall send notice to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by registered mail return receipt requested. The notice shall be written in clear and understandable language and include the following information:
1. The name and tribal affiliation of the Indian child;
2. A copy of the petition by which the proceeding was initiated;
3. A statement of the rights of the biological parents or Indian custodians, and the Indian tribe:
a. to intervene in the proceeding,
b. to petition the court to transfer the proceeding to the tribal court of the Indian child, and
c. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding; further extensions of time may be granted with court approval;
4. A statement of the potential legal consequences of an adjudication on the future custodial rights of the parents or Indian custodians;
5. A statement that if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent them; and
6. A statement that tribal officials should keep confidential the information contained in the notice.
[13] Sections 1911 and 1913 are not involved here.
[14] The notice of the place of the hearing is somewhat lax in specificity and may have contributed to the tardiness, but that has not been raised here.
[15] 25 U.S.C. § 1915 provides in part:
(b) Foster care or preadoptive placements; criteria; preferences
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with
(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
(c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of preferences
In the case of a placement under subsection (a) or (b) of this section, if the
Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.
(d) Social and cultural standards applicable
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
(Emphasis added.)
[16] Guidelines for State Courts; Indian Child Custody Proceedings. 44 Fed.Reg. 67583. The Guidelines provide preadoptive placement guidance. Id. at 67594.
[17] See In re N.L., 1988 OK 39, 754 P.2d 863 (Opala concurring, 1988 OK at ¶¶ 27-29, 754 P.2d at 876-77, for a discussion in the context of good cause to decline a request to transfer a case to a Tribal Court.) A similar absence of a definition for "good cause" exists in that context.
[18] See Note 15.
[19] See Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 Gonz. L.Rev. 353, 387 (1991-92). In contrast, transfer under Section 1911(a) is mandatory because exclusive jurisdiction there rests with the tribal court. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29.
[20] Implicit in this directive is the conclusion that the best interests criterion is not included as one of the Guidelines.
[21] This result is consistent with this Court's holding that the same factors apply when the issue is good cause to deny transfer to a tribal court. In re Adoption of S.W. and C.S., 2002 OK CIV APP 26, 41 P.3d 1003.
[22] The Guidelines exclude from consideration socio-economic conditions and perceived adequacy of the tribal judicial system or social services structure. Guidelines, § C.3(c), 44 Fed.Reg. at 67591. Also, the children here are younger than the ages listed in Section C.3.
[23] These are also proper concerns when a final decision is made concerning the children.
[24] For example, in In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988), the court determination of whether good cause had been shown not to transfer a case will necessarily be made on a case by case basis. Id. at 1335.
[25] Whether the "Anglo" best interest of the child test should be an element of the good cause test has been questioned. Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 Gonz. L.Rev. 353, 387 (1991-92). The Court in Yavapai-Apache Tribe v. Mejia found that the FICWA is silent on the issue and that the Guidelines suggest the best interest of the child has no place in determining good cause.
[26] The trial court and the parties should also be cognizant of the "qualified expert witness" requirements of 25 U.S.C. § 1912(f). The qualified expert testimony diminishes the risk of cultural bias. In re N.L., 1988 OK 39 at ¶ 17, 754 P.2d at 867. For a review of the guidelines for qualification of an expert see In re N.L., 1988 OK 39 at ¶¶ 14-24, 754 P.2d at 866-68. It has been held that such expertise includes a person with special skills and knowledge of the social and cultural aspect of Indian life. State v. Woodruff, 108 Or.App. 352, 816 P.2d 623, 626 (1991); State v. Charles, 70 Or.App. 10, 688 P.2d 1354 (1984). A review of the Charles decision's holding on this point was dismissed because of the correctness of a separate holding. State v. Charles, 299 Or. 341, 701 P.2d 1052 (1985). See also In re Welfare of T.J.J. & G.L.J., 366 N.W.2d 651 (Minn.Ct.App.1985), where the Court found the experts to be qualified who possessed training in Indian culture.
[27] Clear and convincing evidence is defined as a degree of proof that produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established. In re M.B., 2000 OK CIV APP 56, 6 P.3d 1072.
[28] This holding is consistent with the Oklahoma Supreme Court's reliance on the Montana Court and the language of the concurring Opinion of In re N.L. concerning the standard of proof to show good cause to reject transfer to a Tribal Court. See B. Atwood, Flashpoints Under The Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587, 661 (2002).
[29] Nation's issue, as briefed, is slightly different in that Nation argues error from not following the statutory preferences when it was shown that the Tribe had services available. In this Court's view the issue, under the facts presented, examines how compliance with Section 40.6 interacts with the "good cause" determination.
[30] Making an attorney responsible is not without precedent. The Fair Debt Collection Practices Act was held applicable to attorneys regularly engaged in consumer debt-collection litigation on behalf of a creditor client even though not expressly included. Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995). The Court reasoned that a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a debt collector for purposes of the Act.
| {
"pile_set_name": "FreeLaw"
} |
623 F.Supp. 528 (1985)
The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs,
v.
Donald P. HODEL, et al., Defendants.
Civ. A. No. 85-3861.
United States District Court, District of Columbia.
December 11, 1985.
*529 Charles Morgan, Jr., J. Richard Cohen, David W. Crosland, III, Morgan Associates, Chartered, Washington, D.C., for plaintiffs.
Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, John D. Bates, Asst. U.S. Attys., Washington, D.C., for defendants.
MEMORANDUM
OBERDORFER, District Judge.
I.
This is an action for declaratory and injunctive relief brought by the Community for Creative Non-Violence (CCNV) and Mitch Snyder, its primary spokesperson. Defendants are Donald P. Hodel, Secretary of the Interior, and Manus J. Fish, Jr., Regional Director, National Capital Region, of the National Park Service (Park Service).
The controversy in this case stems from the Park Service's denial of CCNV's request to include a statue it commissioned in the 1985 Christmas Pageant of Peace. The Christmas Pageant is an annual "national celebration event" held on the oval portion of the Ellipse during the last weeks of December. 36 C.F.R. § 50.19(d)(1) (1985). It will begin this year on December 12, 1985, at which time the several artifacts of a Christmas celebration will be in place.
The Christmas Pageant is sponsored by the Park Service with the cooperation of The Christmas Pageant of Peace, Inc. The policy of the Park Service is to "encourage[] the expression of views regarding [the Pageant]." 46 Fed.Reg. 55,961. To that end, a public meeting is held several weeks before the Pageant to present a general plan for the event, and to solicit public "suggestions for activities within the theme and format of the Christmas Pageant." Id.
See Plaintiffs' Exhibit 14. Snyder requested that the sculpture be included as part of the Christmas Pageant. On November 26, 1985, the Park Service informed plaintiffs by letter that that it had "decided to deny [CCNV's] request." The letter went on:
The Christmas Pageant of Peace is a non-partisan, non-political special event held each year on the Ellipse. It is cosponsored by the National Park Service and Christmas Pageant of Peace, Inc., a non-sectarian, non-partisan civic organization....
The statue that you wish to have displayed along with those items, as described in your remarks in the public meeting, is not appropriate for the Pageant of Peace. It is not a traditional symbol of the Christmas holiday. Further, the statue and accompanying sign represent your group's statement on a political issue now the subject of great controversy. In addition, as pointed out in your remarks at the public meeting and in your recent press release on the statue, the statue will be used to raise monies for a national fund for the homeless. While this goal is admirable, we believe that it is inappropriate to initiate any fund-raising campaign at the Pageant of Peace. Finally, we are concerned about the expense to the National Park Service resulting from the installation of a functional heating grate, an important part of the statue, on the Pageant site. Although you gave us few details on the statue, it appears that considerable replanning would have to be done to accommodate the statue as a part of the Christmas Pageant of Peace display.
Plaintiffs' Exhibit 1-A. The letter concluded:
[Y]ou may set up your statue on the Ellipse in close proximity to the Pageant of Peace under regulations applicable to First Amendment activities on park lands. In this regard, I have enclosed an application for a permit to conduct your activity.
Id.[1] Thus, plaintiffs have been invited, in accordance with established regulations, to *530 display their statue on the Ellipse in close proximity to the Pageant; the access denied is to the Pageant, itself.
II.
Plaintiffs' complaint alleges that the government has abridged all of the rights guaranteed them by the First Amendment: the prohibition against the establishment of religion, the right to free exercise of religion, the guarantees of free speech and freedom of the press, the right peaceably to assemble, and the right to petition the government for redress of grievances. Complaint for Declaratory and Injunctive Relief at ¶ 43 (filed Dec. 5, 1985). The complaint also alleges that defendants' actions abridge plaintiffs' right to equal protection, and were arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. In Plaintiffs' Motion in Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction (filed Dec. 5, 1985), plaintiffs restate all their arguments, but then only brief to any substantial degree the free speech issue. Defendants filed their opposition to plaintiffs' motion at the close of business on December 9, 1985, only substantially briefing in opposition the free speech issue. See Memorandum in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment and in Opposition to Plaintiffs' Motion for a Temporary Restraining Order or Preliminary Injunction at 1 n. 1 (filed Dec. 9, 1985). Plaintiffs filed a reply in the morning of December 10, 1985, when a hearing on their application and motion was set for 10:00 A.M. Defense counsel represented that he was served with a copy during the hearing, after he had presented his argument.
Due to the exigencies of the briefing of the temporary restraining order application and preliminary injunction motion, the timing of plaintiffs' reply was understandable.[2] However, in their reply, plaintiffs present an innovative Establishment Clause argument not developed in their original brief. Before this time, it was not clear how plaintiffs, given the Supreme Court's decision in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), planned to address the denial of their request on Establishment Clause grounds. The government has had no opportunity to respond to these recent arguments by plaintiffs and the Court is faced with the situation where emergency relief is required if the statue is to be installed before December 12, 1985. Consequently, the Court will limit the temporary restraining order and preliminary injunction decision to the free speech allegations briefed before the December 10 hearing. Any consideration of other First Amendment issues will be reserved for the plenary proceedings.
III.
The factors to consider in deciding upon a request for a temporary restraining order or preliminary injunction are: (1) the plaintiff's likelihood of prevailing on the merits; (2) the threat of irreparable injury to the plaintiff in the absence of injunctive relief; (3) the possibility of substantial harm to other interested parties should injunctive relief be granted; and (4) the interests of the public. Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C. Cir.1985); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977).
Under the Freedom of Expression Clause of the First Amendment, plaintiffs and defendants are in general agreement as to the legal analysis to apply to this case. Components of the analysis are whether the Christmas Pageant represents a limited public forum or a non-public forum, and whether, under the standards applicable to either type of forum, the government's decision is defensible. The parties agree that *531 the relevant forum is the Christmas Pageant, and not the entire Ellipse.
A.
Plaintiffs contend that the Christmas Pageant is a limited public forum. They cite Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 955 n. 7, 74 L.Ed.2d 794 (1983), to say, "A public forum may be created for a limited purpose such as ... for the discussion of certain subjects." See also North Shore Right to Life Committee v. Manhasset American Legion Post No. 304, 452 F.Supp. 834, 838-40 (E.D.N.Y. 1978) (Memorial Day parade is limited public forum); Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.Supp. 632, 639 (D.R.I. 1976) (bicentennial commemoration is limited public forum). Plaintiffs place great emphasis on the public meeting held by the Park Service to solicit public views on the Pageant. They also hark to the special nature of parks as "quintessential public forums." Perry, supra, 460 U.S. at 45, 103 S.Ct. at 954.
The significance of finding the Pageant to represent a limited public forum is that in order to enforce a content-based exclusion the government must show a compelling state interest which is narrowly drawn to achieve its end. Id. at 46, 103 S.Ct. at 955. Plaintiffs argue that the only legitimate issue for decision by the Park Service was whether the statue fits the theme of the Pageant. However, even this issue, they argue, may not be susceptible to decision because the Park Service does not have adequate guidelines for resolution of the issue. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975).
Plaintiffs contend that the reasons given by the government for exclusion of the statue do not pass muster under this constitutional analysis. They argue first that none of the criteria were articulated in advance, and second, even if they were, they are not legitimate. As to tradition, they argue that characters as untraditional as the Chipmunks and Yogi Bear have performed at previous ceremonies. Moreover, they argue that the statue is traditional in its message compassion for the homeless and in its inscription from the biblical Christmas story. They further claim that their message is not political, and even if it is, the Pageant is not apolitical. See Women Strike for Peace v. Morton, 472 F.2d 1273, 1291-92 (D.C.Cir.1972) (per curiam) (Wright, J. concurring). They claim that they are not planning to initiate a fund-raising campaign at the Pageant, but only afterwards, and that numerous commercial sponsors are listed in the Pageant programs. See Plaintiffs' Exhibits 2-C, 2-D, 2-E. Finally, they claim the grate is to be part of the statue and will not cause excessive effort for the Park Service to install.
Plaintiffs also argue that even if the Pageant is a nonpublic forum, the government action is illegitimate. They argue essentially that, by rejecting the statue, the government is trying to suppress expression of a point of view which is distasteful to the government, and that viewpoint discrimination is prohibited even in a nonpublic forum. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., ___ U.S. ___, 105 S.Ct. 3439, 3454, 87 L.Ed.2d 567 (1985).
Beyond the merits, plaintiffs argue that the other prerequisites to injunctive relief are met. First, they argue that any denial of First Amendment rights constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); A Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (D.C.Cir.1969). Second, they argue that only minimal steps are required by the government to accommodate plaintiffs' statue. And third, plaintiffs claim that the public interest would be served by vindication of First Amendment rights.
B.
Defendants argue that the Pageant is a nonpublic forum. They rely primarily on Cornelius, supra, and Perry, supra. They argue that in these cases, the fora *532 were defined as to the particular means of communication sought rather than by identifying the property at issue as owned by the government. They claim that where the use of the relevant forum is limited and requires the permission of the government, the policy and practice of the government must be examined to ascertain whether the government intended to designate the property in question for public discourse on all or on some limited subjects. See Cornelius, supra, 105 S.Ct. at 3449. If permission is not merely routine, then selective access, argues the government, does not create a public forum.
Applying this analysis to the case here, the government argues the the Pageant is unquestionably not a limited public forum. That is, the Pageant is not open to all speakers even on the general subject of Christmas. Defendants argue that the fact that the Park Service holds a public meeting prior to the Pageant does not make the Pageant itself into a public forum. The preliminary meeting may be public, they concede, but even so, the Pageant is not. They distinguish the entertainment portions of the Pageant (which arguably have included non-traditional fare) from the displays which are fixed and thus subject to different regulation by the Park Service. They argue that the government has consistently limited the physical features of the Pageant to traditional Christmas displays.
Defendants further support their argument with a line of cases dealing with the Pageant, itself. Courts have upheld the right of the Park Service to designate the area of the Ellipse for the particular purpose articulated and to keep others (e.g., those who want to conduct a demonstration) out. Women Strike for Peace, supra; Sanders v. United States, 518 F.Supp. 728 (D.D.C.1981), affd. mem., 679 F.2d 262 (D.C.Cir.1982).
In a nonpublic forum, distinctions need only be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46, 103 S.Ct. at 955. Defendants thus agree that even if the Pageant is a nonpublic forum, it cannot be used by the government to discriminate against individuals according to their point of view. Cornelius, supra, 105 S.Ct. at 3454. Defendants emphasize that in nonpublic forum analysis, the availability of alternate fora is an important factor in assessing the reasonableness of the government's regulation. Cornelius, supra, 105 S.Ct. at 3453; Perry, supra, 460 U.S. at 53, 103 S.Ct. at 959. Here, argue defendants, plaintiffs have been offered an opportunity to apply for access to another site at the Ellipse. They also claim that the government can legitimately seek to avoid the appearance of favoring any political points of view in a nonpublic forum. Cornelius, supra, 105 S.Ct. at 3453.
Defendants next demonstrate that exclusion of plaintiffs' statue was viewpoint neutral. They argue that plaintiffs' claims of discrimination are mere unsupported speculation. Defendants appeal to a common sense view of the statue, arguing that although the plaintiffs' message may be traditional, the symbol embodied in the statue obviously is not. Defendants argue that the traditional items included in the Pageant are a reindeer, a yule log, a creche, and a number of trees. The statue, they argue, is simply different. They claim that the Park Service's decision is consistent with the law of the Circuit, which allows the Service to "preempt" a portion of the Ellipse, so long as the other part of the park is available for all sorts of public views. Women Strike for Peace, supra, 472 F.2d at 1293 (Wright, J., concurring); 1294, 1303-04 (Leventhal, J., concurring); 1304 (Robb, J., concurring). Defendants next go through each basis for rejection and argue that it is reasonable. All that is required, they conclude, is that the government reach a reasonable conclusion that the desired speech is inconsistent with the purpose of the forum. Here, they argue, the proffered statue would damage the "traditional" theme, and politicize and commercialize the Pageant.
Defendants also answer a Fifth Amendment claim raised by plaintiffs. Plaintiffs argue that their contemporary creche cannot *533 be excluded so long as a traditional creche is in the Pageant. Defendants answer that because there is no First Amendment right to access to the Pageant, there is no denial of a fundamental right. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959 (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973)). Consequently, the decision to deny access must only have a rational basis, which they claim they have demonstrated.
IV.
As the parties have indicated, the key to analyzing the merits of this controversy is to determine the type of forum at issue. Here, as the government argues, the recent decisions in Cornelius, supra, and Perry, supra, are crucial. The parties agree that the relevant forum here is the Pageant itself, not the entire Ellipse. Determination of the type of forum under Cornelius and Perry, however, requires that the forum be defined narrowly as to the particular means of access sought. 105 S.Ct. at 3449, 460 U.S. at 46-47. At this preliminary stage of factual development, it appears that the Park Service has established different means of access for (1) the permanent displays of Christmas artifacts and (2) the entertainment element of the Pageant, a greater number and variety of individuals and groups being permitted access to the entertainment forum. See Plaintiffs' Exhibits 2-C, 2-D, 2-E. Because plaintiffs seek access as a permanent Pageant display (as distinguished from access to the entertainment phase), the forum for displays appears to be the forum to be considered.
Once the scope of the forum is defined, Cornelius and Perry provide further guidance in determining the nature of the forum. The Cornelius case dealt with the Combined Federal Campaign. The Court there found that the government did not intend to open the forum to all charities, but had consistently limited the drive to "appropriate" charities, and had required permission to participate. The Court concentrated its analysis on whether the government intended to create a forum for expressive activity, or for some other purpose. The Court undertook a similar analysis in Perry.
Here, the facts as they appear at this preliminary stage indicate that the Park Service solicits only suggestions as to possible displays, and has consistently maintained the power to decide what displays are appropriate to the Pageant. Affidavit of Manus J. Fish, Jr. at ¶¶ 10, 11 (filed Dec. 9, 1985). The facts on the record at this time indicate that the Park Service has designated the Pageant as a forum for Christmas displays that it views as "traditional," not a forum for all expression on the subject of Christmas, or for all displays on that subject. Moreover, it appears that the Park Service carefully selects only a few displays and does not routinely accept displays from those who tender them. It thus appears at this stage of the litigation that the forum for Pageant displays is nonpublic.
In its nonpublic forum, the Park Service's decision to deny plaintiffs access must be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46, 103 S.Ct. at 955. As to whether the Park Service has made a reasonable determination that plaintiffs' proffered statue is nontraditional, the decision of the Supreme Court in Lynch v. Donnelly, supra, is instructive. The Court there recognized the existence of the Establishment Clause, yet found that certain state sponsorships of displays with "religious implications," 104 S.Ct. at 1363, have become such a part of our tradition that they do not violate this clause of the Constitution. The Court explained its distinction more by example than by principle, and it is thus this distinction by example which must be applied here.
The Supreme Court listed as items "traditionally associated with Christmas":
a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds *534 of colored lights, a large banner that reads `SEASONS GREETINGS,' and [a] creche ... consist[ing] of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals.
104 S.Ct. at 1358. We take this list as the law on what constitute "traditional" Christmas artifacts. The tension between Lynch and Supreme Court doctrine which firmly separated government from religion, compare Lynch, supra, 104 S.Ct. at 1359, with Everson v. Board of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), can best be accommodated by treating this list as marking the outer limit of what artifacts are permissible for use in a government-sponsored display celebrating a traditional American Christmas. Moreover, strict construction of the Lynch list relieves the Park Service and the judiciary from any need to make impermissible judgments about religious doctrine. See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450, 89 S.Ct. 601, 606, 21 L.Ed.2d 658 (1969). Such strict construction also supplies a clear guideline for decision which eliminates concern about the possible ambiguity of the term "traditional."
Under this standard, it appears rational for the Park Service to include a yule log, reindeer, a Christmas tree, and a creche in a traditional straw-based manger in their Pageant while excluding plaintiffs' modern depiction of homeless people over a steam grate. Whether or not plaintiffs' symbol portrays Christmas as traditionally experienced by a number of Americans is not the issue to be addressed in this preliminary injunction. The items deemed acceptable by the Supreme Court in Lynch do not include portrayals of contemporaneous experiences in the form proposed by plaintiffs here. Thus, it is not irrational for the Park Service to select as traditional the Pageant items approved by the Supreme Court as traditional in Lynch. Nor is it irrational for the Park Service to exclude from the traditional items to be displayed at the Pageant items not specifically approved as traditional by Lynch.
The fact that plaintiffs allege that they are simply presenting a different view of Christmas does not establish that the Park Service is illegally trying to suppress plaintiffs' point of view. In a nonpublic forum, the government can make distinctions according to "subject matter and speaker identity." Perry, supra, 460 U.S. at 49, 103 S.Ct. at 957. To say that the government cannot engage in viewpoint discrimination means that it may not "suppress expression merely because public officials oppose the speaker's view." Id. at 46, 103 S.Ct. at 955. The only evidence of viewpoint discrimination proffered by plaintiffs thus far is the fact that plaintiffs and the government have been in the past, and continue to be now, on opposite sides in the press and in the courtroom on a number of issues. Some of the government's explanations as to plaintiffs' rejection are sufficiently plausible as to preclude a finding at this preliminary stage that plaintiffs are likely to prevail in their contention that the Park Service's decision was pretextual. Moreover, the government's offer of a place for their statue on the Ellipse pursuant to permit demonstrates that the government will allow plaintiffs meaningfully to communicate their message, even if not precisely in their preferred forum.
A finding on the likelihood of success on the merits of plaintiffs' Equal Protection claim follows from a finding that the Pageant will likely be found to be a nonpublic forum. Plaintiffs have not thus far demonstrated that they are likely to establish a First Amendment right to access, and as expounded upon above, under current legal precedent the government's explanation for rejection appears reasonable.
In sum, it appears that plaintiffs have not so far demonstrated a substantial likelihood of success on the merits. In light of this finding, it is difficult to say that the balance of harms obviously weighs in favor of granting plaintiffs' requested relief. Plaintiffs have one view of the public interest, and defendants, another. Plaintiffs *535 have failed to tip the balance sufficiently to warrant preliminary relief. The accompanying Order will deny plaintiffs' application for a temporary restraining order or preliminary injunction, without prejudice, in reliance on the representation in the Park Service's letter to plaintiffs that plaintiffs may set up their statue at the Ellipse "in close proximity to the Pageant of Peace under regulations applicable to First Amendment activities on park lands," Plaintiffs' Exhibit 1-A; and in reliance on government counsel's representation at the December 10, 1985 hearing that a permit application could be processed promptly, and that the application for, or the granting of, such a permit will not moot the controversy with respect to plaintiffs' claim to placement of their display within the Pageant perimeter.
NOTES
[1] At the December 10, 1985 hearing, government counsel represented that a permit could be issued within 24 hours after plaintiffs filed an application and that an application for, or the granting of, such a permit would not moot the controversy with respect to plaintiffs' claim to placement of their display within the Pageant perimeter.
[2] See Letter from David W. Crosland to Judge Oberdorfer (filed Dec. 11, 1985).
| {
"pile_set_name": "FreeLaw"
} |
Matter of Peters v Sullivan (2018 NY Slip Op 00366)
Matter of Peters v Sullivan
2018 NY Slip Op 00366
Decided on January 18, 2018
Appellate Division, Third 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 and Entered: January 18, 2018
523321
[*1]In the Matter of SCOTT PETERS, Appellant,
vANNE SULLIVAN, as Commissioner of Mental Health, Respondent.
Calendar Date: December 14, 2017
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.
Scott Peters, Marcy, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
McCarthy, J.P.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Collins, J.), entered June 1, 2016 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner possession of certain property.
Petitioner is civilly confined in a secure treatment facility pursuant to Mental Hygiene Law article 10. He challenged the confiscation of a storage bin and various office supplies, of which he was deprived due to the fact that they were either unauthorized items or authorized items not purchased from an approved vendor (see generally 14 NYCRR 527.11 [c] [1]). Petitioner argued that he had been wrongfully denied the privilege of purchasing items similar to authorized items and
contended that the items were equally safe as and of a greater quality than preauthorized items. Petitioner's challenge was denied, and that denial was affirmed on administrative review. Notably, petitioner was repeatedly informed that one reason for the denial was that, regardless of whether he had obtained property similar to that which was authorized, a policy under which residents were permitted to purchase property and then submit it for individual approval was too onerous for staff. Petitioner commenced this CPLR article 78 proceeding challenging respondent's determination, and Supreme Court dismissed petitioner's application. Petitioner now appeals.
We affirm. We will not disturb respondent's determination unless it is irrational, [*2]arbitrary, capricious or affected by an error of law (see CPLR 7803 [3]; Matter of Cole v Fischer, 107 AD3d 1256, 1256 [2013]; Matter of Frejomil v Fischer, 59 AD3d 790, 791 [2009]). Initially, petitioner does not contend that any of the items that were confiscated were authorized items acquired from approved vendors (see Matter of Davis v Fischer, 76 AD3d 1152, 1152 [2010]). Further, we find that respondent's requirement that petitioner purchase authorized items from approved vendors is rational as it promotes legitimate institutional goals, including institutional safety. In addition, it is rational to have a procedure that gives residents access to preauthorized items rather than requiring staff to assess the safety and appropriateness of any individual item that a resident wishes to possess (see Matter of Frejomil v Fischer, 59 AD3d at 791). Moreover, and contrary to petitioner's claim, his statutory entitlement to "a reasonable amount of safe storage space for clothing and other personal property" does not entitle him to the storage bin of his choice (Mental Hygiene Law § 33.02 [a] [7]). Petitioner's complaint regarding a policy that he alleges requires families to purchase stationery items and then repackage them in order to send them to residents is unpreserved for our review (see Matter of Williams v Goord, 47 AD3d 1170, 1171 [2008]). Given the foregoing, we find no basis to disturb respondent's determination.
Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
| {
"pile_set_name": "FreeLaw"
} |
51 F.3d 1044
Buckinghamv.McKee**
NO. 94-41291
United States Court of Appeals,Fifth Circuit.
Mar 23, 1995
Appeal From: E.D.Tex., No. 6:94-CV-557
1
DISMISSED.
**
Conference Calendar
| {
"pile_set_name": "FreeLaw"
} |
14-4414-cv
Cancel v. New York City Human Resources Administration
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 23rd day of December, two thousand fifteen.
PRESENT: REENA RAGGI,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
FRANKIE CANCEL,
Plaintiff-Appellant,
v. 14-4414-cv
NEW YORK CITY HUMAN RESOURCES
ADMINISTRATION/DEPARTMENT OF
SOCIAL SERVICES, et al.,
Defendants-Appellees.
_____________________________________
APPEARING FOR APPELLANT: FRANKIE CANCEL, pro se, New York, New
York.
APPEARING FOR APPELLEES: TAHIRIH M. SADRIEH, Assistant
Corporation Counsel, for Zachary W. Carter,
Corporation Counsel of the City of New York,
New York, New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (P. Kevin Castel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment deemed to have been entered on July 6, 2015, is
AFFIRMED.1
Plaintiff Frankie Cancel appeals pro se from an award of summary judgment in
favor of defendants on Cancel’s claim that defendants violated his federal right to
procedural due process and parallel state law rights in rescinding an offer of employment
based on his criminal record. Cancel further appeals from the denial of his motion for
reconsideration. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review an award of summary judgment de novo and will affirm only if the
record, viewed in favor of the non-moving party, shows no genuine issues of material fact
and the moving party’s entitlement to judgment as a matter of law. See Jackson v. Federal
Express, 766 F.3d 189, 193−94 (2d Cir. 2014). We review for abuse of discretion the
denial of reconsideration and the district court’s decision not to exercise supplemental
jurisdiction over state law claims. See Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015)
1
Because no separate judgment was entered in this matter as required by Fed. R. Civ. P.
58(a), a judgment is deemed to have been entered 150 days after the February 6, 2015 entry
of the district court’s dispositive order. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P.
4(a)(7)(A)(ii).
2
(reconsideration); Federal Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d
62, 84 (2d Cir. 2013) (supplemental jurisdiction).
Upon such review, we conclude that the district court correctly granted defendants
summary judgment on Cancel’s procedural due process claim because, under New York
law, Cancel’s appointment would have been probationary and New York does not afford
probationary employees property rights in their positions protected by due process. See
Finley v. Giacobbe, 79 F.3d 1285, 1297−98 (2d Cir. 1996) (collecting cases). Insofar as
Cancel claims that his interviewers appointed him to a non-probationary position, such an
action would have been unauthorized and, thus, insufficient to bind defendants or to confer
a property interest in the position on Cancel. See Safway Steel Prods. v. Craft
Architectural Metals Corp., 183 A.D.2d 452, 452, 583 N.Y.S.2d 844, 845 (1st Dep’t 1992).
Further, on the record presented, we identify no abuse of discretion in the district
court’s decision not to exercise supplemental jurisdiction over the state law claims. See
Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (“In general, where the
federal claims are dismissed before trial, the state claims should be dismissed as well.”
(internal quotation marks omitted)). We also identify no abuse of discretion in the
decision not to grant reconsideration. See Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012) (“It is well-settled that [a motion for reconsideration]
is not a vehicle for relitigating old issues, presenting the case under new theories, securing
3
a rehearing on the merits, or otherwise taking a second bite at the apple . . . .” (ellipses
original) (internal quotation marks omitted)).
We therefore affirm for substantially the reasons stated by the district court in its
thorough October 31, 2014 and February 6, 2015 decisions. We have considered all of
Cancel’s remaining arguments and conclude that they are without merit. Accordingly, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4
| {
"pile_set_name": "FreeLaw"
} |
951 F.2d 435
Ronald HAZZARD, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-1338.
United States Court of Appeals,First Circuit.
Heard Nov. 7, 1991.Decided Dec. 18, 1991.
Jeremiah Friedman with whom Harvey Kaplan and Kaplan, O'Sullivan & Friedman, Boston, Mass., were on brief, for petitioner.
Charles E. Pazar, Atty., Office of Immigration Litigation, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, Washington, D.C., were on brief, for respondent.
Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.
CYR, Circuit Judge.
1
Petitioner Ronald Hazzard, also known as John Hazan, seeks review of a final order of the Board of Immigration Appeals ("BIA") affirming an immigration judge's denial of petitioner's application for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1182(c).1 Upon rehearing, we affirm.2
2
* BACKGROUND
3
Petitioner came to the United States in 1969 at the age of twelve and is a lawful permanent resident. Since entering the United States, petitioner has been convicted of three state drug charges.3 In 1984, he pled guilty to a federal cocaine distribution charge. Petitioner received suspended sentences on each state charge, and a two-year prison term, followed by a three-year special parole term, on the federal drug charge.
4
Following the federal conviction, the Immigration and Naturalization Service ("INS") ordered petitioner to show cause why he should not be deported pursuant to 8 U.S.C. § 1251(a)(11), which empowers the Attorney General to deport an alien convicted of a controlled substance offense. Petitioner conceded deportability but requested discretionary relief pursuant to 8 U.S.C. § 1182(c). After several hearings, at which petitioner and his mother and father testified, the immigration judge reviewed the evidence and found several factors favoring relief: extended residence in the United States; extensive family ties in the United States, with parents, several siblings and a natural child who is a United States citizen; numerous favorable character references; and a worthy employment history. The immigration judge found, however, that these positive factors were outweighed by the "adverse factors of respondent's involvement [in] distribution of narcotics." The immigration judge further found that petitioner's "recidivist behavior" indicated an absence of rehabilitation, and concluded that the application for discretionary relief from deportation should be denied.
5
Petitioner appealed to the BIA, claiming that the immigration judge had assigned insufficient weight to the favorable factors and requesting the BIA to consider petitioner's changed circumstances following the immigration judge's decision, including the birth of two children (also U.S. citizens), the successful completion of the special parole term, the absence of any new criminal charges, and petitioner's establishment of a house painting business. Based on its review of all the evidence, including the new evidence adduced by petitioner, the BIA found that
6
the adverse factors in this case, i.e., the respondent's criminal convictions for distribution of controlled substances are weighty evidence of the respondent's undesirability as a permanent resident. The pernicious effects of drugs on American society are well documented. Therefore, we cannot state that the immigration judge's decision to deny 212(c) relief in the exercise of discretion was error, as a matter of law.
II
DISCUSSION
7
At the discretion of the Attorney General, section 212(c) of the Act permits a waiver of excludability to otherwise inadmissible aliens. 8 U.S.C. § 1182(c). The discretionary authority vested in the Attorney General is delegated to the BIA, which determines its exercise by "balanc[ing] the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978).
8
The petitioner bears the burden of demonstrating that he merits a discretionary waiver of excludability. Id. at 583. Ordinarily, a petitioner with a criminal record is required to demonstrate rehabilitation in order to qualify for discretionary relief, id. at 588, although rehabilitation is not an absolute prerequisite to relief, Matter of Edwards, Interim Decision 3134 (BIA 1990). Moreover, a petitioner who stands convicted of serious drug offenses, especially drug trafficking offenses, must demonstrate "unusual or outstanding countervailing equities," Marin, 16 I. & N. Dec. at 586 n. 4. Yet even "such a showing does not compel" a waiver of excludability. Matter of Buscemi, 19 I. & N. Dec. 628, 634 (BIA 1988). Due to its discretionary nature, we consider only whether the BIA's denial of a waiver of excludability was "arbitrary, capricious or an abuse of discretion." McLean v. INS, 901 F.2d 204, 205 (1st Cir.1990). "The denial will be upheld unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Id., quoting Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985).
9
Petitioner presents three claims: (1) the BIA improperly denied a waiver solely on the basis of petitioner's drug convictions and thereby deviated from the intent of Congress; (2) the BIA abused its discretion by inexplicably departing from established policy; and (3) the BIA did not conduct proper review of the decision of the immigration judge.
10
A. "Outstanding Equities"
11
The BIA determination that the "outstanding equities" demonstrated by petitioner were insufficient to overcome his four drug convictions did not constitute an abuse of discretion. Neither the BIA, Matter of Buscemi, 19 I. & N. Dec. at 635, nor this court, see Joseph, 909 F.2d at 607 (denial of § 212(c) relief held proper despite BIA finding of "outstanding equities"), has ever held that a finding of "outstanding equities" compels allowance of a waiver of excludability. Rather, the BIA is required to evaluate each individual petitioner's desirability as a permanent resident and to provide a rational explanation of its decision. In the present case, following a thorough review of the record, the BIA found that petitioner did not merit discretionary relief, despite the "outstanding equities," due to his numerous drug convictions. As there was no abuse of discretion in the BIA's balancing of the favorable and unfavorable factors relating to the petitioner, we decline to interpose the more lenient disposition sought by petitioner. See id. at 607.
12
Petitioner contends, nonetheless, that a denial of discretionary relief, due solely to his drug convictions, distorts the intent of Congress. Although petitioner concedes that "the immigration laws clearly reflect the strong Congressional policy against lenient treatment of drug trafficking offenders," Blackwood v. INS, 803 F.2d 1165, 1167 (11th Cir.1986); Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.1991), he contends that Congress nevertheless intended that otherwise inadmissible aliens who have been convicted of drug offenses remain eligible for a waiver of excludability. According to petitioner, the BIA effectively precludes drug offenders from a meaningful opportunity to obtain discretionary relief. Petitioner insists that he demonstrated all that could reasonably be required to merit discretionary relief, since the BIA found that he possessed "outstanding equities" and, according to petitioner, implicitly found that he was rehabilitated. We must disagree.
13
First, contrary to petitioner's assertion, the BIA made no rehabilitation finding, either explicit or implicit. The BIA did state that "respondent testified that he is sincerely remorseful for his past criminal behavior and maintains that he is completely rehabilitated." But the BIA made no determination that rehabilitation had taken place, nor did it take issue with the contrary finding explicitly made by the immigration judge--that petitioner had not demonstrated rehabilitation. Second, the BIA's determination that the "outstanding equities" were insufficient to overcome petitioner's four drug convictions was in no sense tantamount to a disentitlement of drug offenders generally, or petitioner in particular, to a meaningful opportunity to seek discretionary relief. The BIA is required to make a case-by-case determination. See, e.g., Marin, 16 I. & N. Dec. at 584 ("it has been held that each case must be judged on its own merits"). Drug offenders demonstrating either more outstanding equities or less serious criminal records might well be accorded discretionary relief. The BIA did no more than determine that relief was not warranted in petitioner's case. We find no distortion of congressional intent.
B. Departure from BIA Policies
14
Petitioner alleges abuse of discretion based on an inexplicable departure from established BIA policies, see McLean, 901 F.2d at 205; Williams, 773 F.2d at 9, relating to BIA procedures for considering discretionary relief for drug offenders. Petitioner perceives two recent policy shifts: one relating to the manner in which the BIA evaluates the applications of petitioners who are required to demonstrate outstanding equities; and a second policy relating to the demonstration of rehabilitation. Since both of the alleged shifts are seen as emanating from the same decision, we discuss them together.
15
Petitioner argues that the recent BIA decision in Matter of Edwards, Int.Dec. 3134, modifies BIA procedure in cases like the present. The BIA made clear in Edwards that the BIA is required to conduct a "full examination of an alien's equities" in all cases, including those involving drug offenders. Id. The Edwards clarification was considered appropriate because the BIA believed that certain language in an earlier case, Buscemi, was potentially "misleading." Id. Buscemi indicated, in effect, that an alien who established unusual or outstanding equities had not thereby demonstrated that discretionary relief was merited, but had merely met the "threshold test for having a favorable exercise of discretion considered in his case." Buscemi, 19 I. & N. Dec. at 634. The Edwards decision expressed concern that Buscemi might have been taken to imply that "a full examination of an alien's equities can somehow be pretermitted." Edwards, Int.Dec. 3134. Edwards disavowed the potentially misleading language and confirmed that a proper merit determination "can only be made after a complete review of the favorable factors in [each] case." Id. Edwards also made clear that certain language in Marin, 16 I. & N. Dec. at 588, and Buscemi, 19 I. & N. Dec. at 635--stating, in effect, that a petitioner with a criminal record "ordinarily" is required to demonstrate rehabilitation before relief can be granted--did not mean that rehabilitation was an "absolute prerequisite" to relief, but a factor to be considered in exercising discretion. Edwards, Int.Dec. 3134.
16
We cannot agree that Edwards represents an inexplicable shift in BIA policy or, for that matter, any significant shift at all. Edwards did no more than clarify ambiguous language in earlier BIA decisions. See Ayala-Chavez, 944 F.2d at 641 n. 3 (Edwards "merely explained Buscemi and made it clear that a full examination of an alien's equities could not be pretermitted"). Nor did the potentially misleading language improperly influence the BIA in its disposition of petitioner's application. The BIA in the instant case considered all relevant factors, balanced the equities and did not treat rehabilitation as an absolute prerequisite to relief.
C. Standard of Review by BIA
17
Finally, petitioner asserts that the BIA deferred to the decision of the immigration judge, whereas it should have conducted de novo review. Although petitioner concedes that the BIA is under no legal obligation to conduct de novo review,4 he argues that de novo review was required because the BIA made findings of fact which differed from those of the immigration judge and because it made supplemental findings based on the new evidence petitioner submitted to the BIA.
18
We discern no contradiction between the findings of the BIA and those of the immigration judge. Petitioner argues that, unlike the immigration judge, the BIA explicitly found that the petitioner possessed "outstanding equities" and implicitly found that petitioner had been rehabilitated. As previously explained, we cannot agree with petitioner's contention that the BIA made an implicit finding of rehabilitation. Moreover, while the immigration judge did not make an explicit finding of "outstanding equities," he found that several factors favored discretionary relief, and there is nothing in the immigration judge's opinion which would suggest that these favorable factors were not "outstanding equities."
19
Finally, while the BIA made supplemental findings, we perceive no sound basis, either in law or reason, for concluding that the BIA was thereby disabled from upholding the immigration judge's decision. The BIA "has full power to determine factual issues in cases before it," 1 C. Gordon & S. Mailman, Immigration Law and Procedure, § 3.05[b] at p. 3-57; see, e.g., Matter of B., 7 I. & N. Dec. 1, 14 (BIA 1956), and may consider new evidence not presented to the immigration judge, Matter of Demosthenes, 13 I. & N. Dec. 345, 346 n. 1 (BIA 1969); Matter of Godfrey, 13 I. & N. Dec. 790, 791 n. 1 (BIA 1971). Moreover, at least in cases where no new ground for deportation is presented, see, e.g., Matter of Rios-Carrillo, 10 I. & N. Dec. 291 (BIA 1963) (remanding after presentation of new ground for deportation), the BIA may uphold an immigration judge's decision even after considering new evidence in favor of petitioner, see, e.g., Matter of Reyes, 16 I. & N. Dec. 475 (BIA 1978) (affirming decision by District Director after considering legal memoranda and affidavit of foreign lawyer). The BIA made an extensive review of the evidence presented before the immigration judge, as well as the newly-presented evidence in favor of petitioner's request for discretionary relief. It then made its determination that the immigration judge's denial of discretionary relief under section 212(c) did not constitute an abuse of discretion. We find no error in this determination. Accordingly, we uphold the deportation decision of the BIA.
20
The petition for review is denied and the deportation order is enforced.
1
We have jurisdiction to review final orders for deportation. See Joseph v. INS, 909 F.2d 605, 606 (1st Cir.1990)
2
We affirmed the BIA order in an earlier, unpublished per curiam decision, see Hazzard v. INS, 940 F.2d 647 (1st Cir.1991) (Table), but thereafter granted rehearing
3
In 1976 petitioner was convicted of conspiracy to distribute marijuana and of possessing marijuana, with intent to distribute. In 1983, he was convicted of possessing marijuana, with intent to distribute
4
The BIA has the discretionary power to conduct de novo review of an immigration judge's decision. See, e.g., Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986); Matter of Vilanova-Gonzalez, 13 I. & N. Dec. 399, 402 (BIA 1969). Of course, the BIA does not invariably do so. See, e.g., Matter of Marinho, 10 I. & N. Dec. 214, 218 (BIA 1963) (BIA acknowledges its authority to make findings of fact and conclusions of law, but decides to defer to factfinder in the first instance); Matter of T----, 7 I. & N. Dec. 417, 419 (BIA 1957) (deferring to findings of special inquiry officer)
| {
"pile_set_name": "FreeLaw"
} |
904 F.Supp. 1407 (1995)
In re RIO HAIR NATURALIZER PRODUCTS LIABILITY LITIGATION.
No. 1055.
Judicial Panel on Multidistrict Litigation.
June 28, 1995.
Before JOHN F. NANGLE, Chairman, ROBERT R. MERHIGE, JR., WILLIAM B. ENRIGHT, CLARENCE A. BRIMMER,[*] JOHN F. GRADY, BAREFOOT SANDERS and LOUIS C. BECHTLE, Judges of the Panel.
TRANSFER ORDER
JOHN F. NANGLE, Chairman.
This litigation presently consists of the ten actions listed on the following Schedule A and pending in seven federal districts as follows: three actions in the Eastern District of Pennsylvania, two actions in the Northern District of Illinois, and one action each in the Central District of California, District of Colorado, Northern District of Georgia, Southern District of New York and Northern District of Texas. Before the Panel are four separate motions by various plaintiffs for an order of the Panel, pursuant to 28 U.S.C. § 1407, centralizing all actions in a single district for coordinated or consolidated pretrial proceedings.[1] The four motions are as follows: 1) motion of plaintiffs in the Central District of California action and one Eastern District of Pennsylvania action (Franklin) for centralization in the Central District of California; 2) motion of plaintiffs in the Southern District of New York action for centralization in the Southern District of New York "or some other centrally located" transferee court; 3) motion of plaintiffs in the Northern District of Georgia action for centralization in the Northern District of Georgia; and 4) motion of plaintiffs in the District of Colorado action for centralization in the District of Colorado. No responding party opposes centralization. The following parties support centralization in the Central District of California: 1) defendants World Rio Corporation (World Rio), Pantron I Corporation *1408 and Hal Z. Lederman; 2) plaintiffs in four actions before the Panel (Daniels and Hardy in the Eastern District of Pennsylvania, Jackson in the Northern District of Illinois and the Northern District of Texas action; and 3) plaintiffs in one Central District of California potential tag-along action. Plaintiffs in one District of Colorado potential tag-along action favor centralization in the District of Colorado.
On the basis of the papers filed and the hearing held, the Panel finds that the actions in this litigation involve common questions of fact and that centralization under Section 1407 in the Eastern District of Michigan will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Common factual questions arise because all actions allege defects in hair straightener products (Rio Hair Naturalizers) distributed exclusively in the United States by World Rio. Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (especially with respect to overlapping class certification requests), and conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the Eastern District of Michigan is the appropriate transferee forum for this litigation. Although that district was not suggested by any of the parties before us, we note that i) of the approximately 50 federal actions that the Panel is aware of in this docket, six actions are already pending in the Eastern District of Michigan, ii) according to the Panel's records, three of the six Eastern District of Michigan actions are already assigned to Judge Gerald E. Rosen, whom we have selected to serve as transferee judge, and iii) the Eastern District of Michigan provides a geographically central location for this nationwide litigation.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the following Schedule A be, and the same hereby are, transferred to the Eastern District of Michigan and, with the consent of that court, assigned to the Honorable Gerald E. Rosen for coordinated or consolidated pretrial proceedings.
SCHEDULE A
MDL-1055 In re Rio Hair Naturalizer Products Liability Litigation
Central District of California
Iris Franklin, et al. v. World Rio Corp., et al., C.A. No. 2:95-852
District of Colorado
Mary P. Carpenter, et al. v. World Rio Corp., et al., C.A. No. 1:95-247
Northern District of Georgia
Constance Taylor, et al. v. World Rio Corp., et al., C.A. No. 1:95-535
Northern District of Illinois
Flora Jackson v. World Rio Corp., et al., C.A. No. 1:95-543
Cathy Seay, et al. v. World Rio Corp., et al., C.A. No. 1:95-652
Southern District of New York
Mabel Mealing, et al. v. World Rio Corp., et al., C.A. No. 1:95-892
Eastern District of Pennsylvania
Regina Ware, et al. v. World Rio Corp., et al., C.A. No. 2:95-18
Ethyl Hardy v. World Rio Corp., et al., C.A. No. 2:95-91
Joanne Daniels v. World Rio Corp., et al., C.A. No. 2:95-216
Northern District of Texas
Linda Wilkerson, et al. v. World Rio Corp., et al., C.A. No. 4:94-876
NOTES
[*] Judge Brimmer took no part in the decision of this matter.
[1] The Panel has also been notified that more than 40 additional related actions are pending in more than fifteen federal districts. These actions, and any other actions that come to the Panel's attention, will be treated as potential tagalong actions. See Rules 12 and 13, R.P.J.P.M.L., 147 F.R.D. 589, 596-97 (1993).
| {
"pile_set_name": "FreeLaw"
} |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2018
Decided November 14, 2018
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18‐1342
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 17‐CR‐40035‐JPG‐1
ROBERT TURNER, J. Phil Gilbert,
Defendant‐Appellant. Judge.
O R D E R
Robert Turner pleaded guilty to two counts of distribution of methamphetamine
and one count of possession with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
851. He was sentenced within the range recommended by the Sentencing Guidelines to
three concurrent terms of 264 months’ imprisonment and ten years’ supervised release.
Turner filed a notice of appeal, but his appointed counsel asserts that the appeal is
frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967). Turner has
responded to counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains the nature of
the case and addresses potential issues that an appeal of this kind might be expected to
involve, and so we limit our review to the subjects that she and Taylor discuss.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 18‐1342 Page 2
Counsel tells us that she consulted with Turner and that he does not wish to
challenge or withdraw his guilty plea, so she properly avoids discussing the
voluntariness of the plea or the adequacy of the plea colloquy. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012).
Counsel next says that she reviewed the district court’s guidelines calculations
but did not find even a potential claim to discuss. Turner proposes arguing that his
prior offenses for distributing less than 5 grams of substances containing
methamphetamine did not qualify as predicates for career‐offender status, see U.S.S.G.
§ 4B1.1, but this argument would be frivolous because each drug offense was
punishable by more than one year of imprisonment. See U.S.S.G. § 4B1.2(b); 720 ILCS
646/55 (defining delivery of up to 5 grams of substance containing methamphetamine as
a Class 2 felony); 730 ILCS 5/5‐4.5‐35 (Class 2 felonies punishable by sentence of 3 to 7
years).
Counsel does consider whether Turner could challenge his prison sentence as
unreasonable, but she appropriately rejects this potential argument as frivolous.
Turner’s sentence is within the guidelines range (just two months above the low end)
and thus we may treat it as presumptively reasonable, see United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). Counsel found no reason to disturb that presumption.
Moreover, the court adequately assessed the factors in 18 U.S.C. § 3553(a), noted
Turner’s long criminal history, and reasonably concluded that a 264‐month term was
appropriate to reflect the need to deter criminal conduct (“[P]rior sentences haven’t
deterred you … I’m surprised these drugs haven’t killed you. … How is this going to
change?”) and protect the public (“When you get out you just continue to violate”). The
court then confirmed on the record that all mitigation arguments had been addressed.
Counsel also considers whether Turner could argue that he received ineffective
assistance of counsel but properly concludes, in light of her representation of Turner
during his plea and sentencing, that such a claim should be brought in a collateral
action so that a fuller record can be developed. United States v. Stokes, 726 F.3d 880, 897–
98 (7th Cir. 2013) (citing Massaro v. United States, 538 U.S. 500, 504–05 (2003)).
In his piecemeal Rule 51(b) submissions, Turner raises a number of challenges to
events occurring before his guilty plea. He contends, for instance, that his rights under
the Speedy Trial Act, 21 U.S.C. § 3161(b), were violated because he was not indicted
within 30 days of his arrest (in fact, he was indicted fifteen days before his arrest); that
the search warrant that uncovered the drugs in his possession was invalid; and that in
No. 18‐1342 Page 3
the wake of Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement violated
the Fourth Amendment when it obtained digital information from his seized debit cards
(by running these cards through a financial crimes system scanner) without a warrant
or probable cause. But Turner’s unconditional guilty plea waived non‐jurisdictional
defects that arose prior to the plea, United States v. Adigun, 703 F.3d 1014, 1019 (7th Cir.
2012); Tollett v. Henderson, 411 U.S. 258, 267 (1973), including speedy‐trial claims, see
United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012); Parisi v. United States, 529
F.3d 134, 138 (2d Cir. 2008); Washington v. Sobina, 475 F.3d 162, 165–66 (3d Cir. 2007);
and Fourth Amendment claims. Adigun, 703 F.3d at 1019–22.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
| {
"pile_set_name": "FreeLaw"
} |
Case: 14-146 Document: 29 Page: 1 Filed: 08/29/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE FIDELITY NATIONAL INFORMATION
SERVICES, INC., FISERV, INC., JACK HENRY &
ASSOCIATES, INC., ET AL., *
Petitioners.
______________________
2014-146
______________________
On Petition for Writ of Mandamus to the United
States District Court for the Eastern District of Texas in
Nos. 2:13-cv-00431-JRG-RSP, 2:13-cv-00432-JRG-RSP,
and 2:13-cv-00433-JRG-RSP, Judge J. Rodney Gilstrap.
______________________
ON PETITION
______________________
ORDER
Fidelity National Information Services, Inc. et al. (Fi-
delity) submit a letter suggesting mootness of this petition
for a writ of mandamus, because the United States Dis-
trict Court for the Eastern District of Texas has stayed
proceedings in 2:13-cv-00431 pending its disposition of an
unopposed motion to stay proceedings in that case. In
* This is not the official caption and is used only for
this order.
Case: 14-146 Document: 29 Page: 2 Filed: 08/29/2014
2 IN RE FIDELITY NATIONAL INFORMATION
this petition, Fidelity sought to direct the district court to
stay proceedings in three cases before that court. We
treat that letter as a motion to voluntarily dismiss this
petition.
We note that, after the filing of this mandamus peti-
tion, the district court also granted motions to stay pro-
ceedings in the other two district court cases underlying
this petition, 2:13-cv-00432 and 2:13-cv-00433.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion to dismiss is granted and this petition is
dismissed without prejudice to refiling. All pending
motions are denied as moot.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s8
| {
"pile_set_name": "FreeLaw"
} |
927 F.2d 595Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Aaron HOLSEY, Plaintiff-Appellant,v.Ms. HARMOND, Individually, and as a Nurse assigned to theCorrectional Training Center at Hagerstown, Maryland,Patalinghug, Individually, and as a Physician with theChesapeake Medical Association and assigned to theCorrectional Training Center at Hagerstown, Maryland, SarahPrintz, Individually, and as a former Nurse assigned to theCorrectional Training Center, located at Hagerstown,Maryland, Japzon, Individually, and as a Surgeon assigned tothe Washington County General Hospital located atHagerstown, Maryland, Defendants-Appellees.
No. 90-7148.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 4, 1991.Decided Feb. 25, 1991.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CA-84-3308)
Aaron Holsey, appellant pro se.
Audrey J.S. Carrion, Office of the Attorney General of Maryland, Baltimore, Md., Philip Sturman, Columbia, Md., for appellees.
D.Md.
AFFIRMED.
Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit Judges.
PER CURIAM:
1
Aaron Holsey appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Holsey v. Harmond, CA-84-3308 (D.Md. Aug. 2, 1990). 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. Holsey's request for appointment of counsel is denied.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00506-CR
BRYAN SEAMSTER APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY
------------
MEMORANDUM OPINION1 AND JUDGMENT
----------
We have considered the appellant=s “Motion To Dismiss Appeal.” The
motion complies with rule 42.2(a) of the rules of appellate procedure. Tex. R.
App. P. 42.2(a). No decision of this court having been delivered before we
received this motion, we grant the motion and dismiss the appeal. See Tex. R.
App. P. 42.2(a), 43.2(f).
PER CURIAM
1
See Tex. R. App. P. 47.4.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 9, 2012
2
| {
"pile_set_name": "FreeLaw"
} |
FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FITSGERALD JOHANES, No. 05-73687
Petitioner, Agency No. A095-629-938
v.
MEMORANDUM *
ERIC H. HOLDER Jr. Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted, May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Fitsgerald Johanes, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal and relief under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 n.4 (9th Cir. 2003), and we deny the petition for
review.
The record does not compel the conclusion that Johanes established changed
or extraordinary circumstances to excuse his late filed asylum application. See 8
C.F.R. § 1208.4(a)(4), (5). Accordingly, Johanes’ asylum claim fails.
Substantial evidence supports the agency’s finding that Johanes’ encounter
with a group of Muslims in 1998 in which they asked to see his identification card,
having the front window of his car broken and a church group meeting disturbance
did not amount to past persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016
(9th Cir. 2003).
Further, substantial evidence supports the agency’s conclusion that Johanes
has not demonstrated the requisite individualized risk of persecution as a Christian
to establish a clear probability of persecution. See Hoxha, 319 F.3d at 1184-85,
Wakkary v. Holder, 558 F.3d 1049, 1064-65 (9th Cir. 2009). Further, on the
record, Johanes failed to establish a pattern or practice of persecution of Christians
in Indonesia. See id. at 1060-61.
2 05-73687
Johanes does not raise any arguments in his opening brief regarding the
agency’s denial of his CAT claim, therefore it is waived. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not supported by argument are
deemed waived).
PETITION FOR REVIEW DENIED.
3 05-73687
| {
"pile_set_name": "FreeLaw"
} |
774 F.2d 1171
Starrv.C.I.R.
84-2605
United States Court of Appeals,Eighth Circuit.
9/13/85
1
U.S.T.C.
2
AFFIRMED*
3
---------------
* See Local Rule 14.
| {
"pile_set_name": "FreeLaw"
} |
832 F.2d 43
9 Fed.R.Serv.3d 412, Bankr. L. Rep. P 72,019
In re JEANNETTE CORPORATION.Appeal of GOLDSTEIN & MANELLO.
No. 87-3112.
United States Court of Appeals,Third Circuit.
Argued Aug. 19, 1987.Decided Oct. 30, 1987.
William M. Wycoff (argued), Julie A. Maloney, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellants.
Douglas A. Campbell (argued), David P. Braun, Campbell & Levine, Pittsburgh, Pa., for appellee.
Before GIBBONS, Chief Judge, WEIS, Circuit Judge, and KELLY,* District Judge.
OPINION OF THE COURT
WEIS, Circuit Judge.
1
This appeal challenges a district court's affirmance of a bankruptcy judge's order finding that counsel had violated Fed.R.Civ.P. 11 as well as Bankruptcy Rule 9011 and directing that a hearing be held to determine whether sanctions should be imposed. We conclude that because sanctions have not been fixed, the order is interlocutory and nonappealable. Likewise, the affirmance of the bankruptcy judge's order denying the debtor's motion to compel performance of certain actions by the trustee is nonappealable.
2
The orders appealed from are part of a long-running Chapter 11 proceeding but the jurisdictional issues presented to us are narrow. After an extensive hearing, the bankruptcy judge decided that the firm of Goldstein and Manello, counsel for debtor Jeannette Corporation, had filed a motion that was "patently in violation of Rule 11 of the Federal Rules of Civil Procedure and Rule 9011 of the Bankruptcy Rules." The court stated: "It is hereby ordered, adjudged and decreed that a further hearing shall be scheduled by and at the convenience of the Court to determine what, if any, sanctions shall emanate as a result of this Memorandum Opinion and Order."
3
Before the bankruptcy judge could convene further proceedings, the debtor's attorney filed an appeal in the district court, as well as an appeal from the related order denying a motion to compel the trustee to perform certain duties. The district court affirmed both orders. The debtor's counsel appeals the affirmance of both the sanction order and the denial of the motion to compel.
4
The parties assert that we have appellate jurisdiction under 28 U.S.C. Sec. 158(d) (Supp. III 1985). Despite this concession, however, we have a duty to raise the issue of jurisdiction sua sponte. Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 537 n. 1 (3d Cir.1985). See also Cannon v. Hawaii Corp., 796 F.2d 1139 (9th Cir.1986).
5
The appealability of orders issued by bankruptcy judges is governed by 28 U.S.C. Sec. 158 (Supp. III 1985). Section 158(a) authorizes district courts to hear appeals from "final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges." Section 158(d) provides that "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsection[ ] (a)."
6
The statutory language clearly authorizes the district courts to grant leave to hear appeals from interlocutory orders. It is equally plain that no such power is granted to the courts of appeals; rather, our jurisdiction is limited to final orders and judgments.
7
In the past we have observed that the unique considerations attendant to bankruptcy appeals permit us to be "somewhat less concerned about the dangers of interpreting finality in appeals under section 1293(b)1 [in a manner] slightly more broadly than in appeals under section 1291." Moxley v. Comer (In re Comer), 716 F.2d 168, 171 (3d Cir.1983), quoting Official Unsecured Creditors' Comm. v. Michals, 689 F.2d 445, 449 (3d Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983). That approach addresses such pragmatic considerations as the waste of time and resources that would result if review of discrete portions of the proceedings were delayed until after approval of a plan of reorganization. In re Amatex Corp., 755 F.2d 1034, 1039 (3d Cir.1985). Although this liberal construction explains the statute's underpinnings, it does not apply in situations unrelated to the special needs of bankruptcy litigation.
8
Moreover, as Comer observed, the language of Sec. 158(d) does not permit this court to review the district court's disposition of an appeal from a purely interlocutory order of the bankruptcy judge. Unless the order submitted to the district court is final, section 158(d) will not allow an appeal to this court. Comer, 716 F.2d at 172. See also Four Seas Center, Ltd. v. Davres, Inc., 754 F.2d 1416, 1418 (9th Cir.1985). Cf. TCL Investors v. Brookside Savings & Loan Ass'n, 775 F.2d 1516 (11th Cir.1985); Bayer v. Nicola, 720 F.2d 484 (8th Cir.1983).
9
In a non-bankruptcy case, Becton Dickinson & Co. v. District 65, UAW, 799 F.2d 57 (3d Cir.1986), we declined to review an order of the district court which granted counsel fees but had not yet reduced the award to a specific figure. In doing so, we reaffirmed our earlier rulings that, until fixed in amount, an award of attorney's fees is not a final order for purposes of appeal. See United States v. Sleight, 808 F.2d 1012, 1015 (3d Cir.1987). In Sleight, we recited our concerns about duplicative expenditures of time and resources in coping with separate appeals initially from the award of fees and later from the calculation of the amount.
10
The same analysis applies here, and is not affected by the liberality otherwise extended to appealability of bankruptcy orders. Inefficient use of judicial resources is as objectionable in bankruptcy appeals as in any other field. See In re: Meyertech Corp., 831 F.2d 410 (3d Cir. 1987). Accordingly, we will apply the same reasoning to reject appeals from bankruptcy orders imposing sanctions when the amount or the form of sanction has not yet been determined.
11
We therefore conclude that the order appealed from here lacks finality.2 If the sanctions are to be an assessment of counsel fees or expenses, they must be fixed before the order is final and appealable. Indeed, in this case, the order of the bankruptcy judge does no more than announce a violation and a plan to schedule another hearing to decide whether sanctions will be imposed. Even construing this very preliminary order as evidencing an intention to impose a monetary penalty, the element of finality is absent. We therefore conclude that the appeal from the affirmance of the order on sanctions must be dismissed.
12
The debtor's counsel also appeals the district court's denial of his motion to compel the trustee to perform certain duties counsel alleges were necessary for the preparation of a plan for reorganization. Specifically, the debtor's counsel wished the trustee to: (i) account for all property received and disposed of; (ii) examine proofs of claims and file necessary objections; (iii) provide certain information to the debtor; (iv) prepare a plan for reorganization; (v) file tax returns; (vi) file periodic operating reports; (vii) complete an accounting with an affiliated debtor; (viii) comply with fee application requirements; and (ix) perform other duties required of a trustee. The bankruptcy judge denied the motion, finding that the debtor's counsel had adequate information and that the trustee had properly performed his duties to that point.
13
The motion at issue parallels and may be considered in the same category as a request for discovery. The order of the district court does not dispose of a claim or cause of action; it only acts to guide the parties toward resolution of the substantive issues in the case. Clearly, if in the course of litigation further action or additional information from the trustee is required, the bankruptcy judge is free to direct appropriate action. The denial of a motion filed by the debtor's counsel amounts to nothing more than a step along the way to final disposition; thus it is interlocutory.
14
In civil litigation, discovery orders are, with rare exception, non-appealable. See Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3d Cir.1969). A similar approach applies in bankruptcy cases. See International Horizons, Inc. v. Committee of Unsecured Creditors, 689 F.2d 996, 1000-01 (11th Cir.1982) (absent finding of contempt, bankruptcy court order compelling production of privileged documents held interlocutory and non-appealable). See also 1 Collier on Bankruptcy Sec. 3.03[b] (L. King 15th ed. 1987). The denial of the motion to compel in the case at hand is not final and hence not appealable to this court.
15
Accordingly, the appeal will be dismissed.
*
The Honorable James McGirr Kelly, United States District Court for the Eastern District of Pennsylvania, sitting by designation
1
28 U.S.C. Sec. 1293(b), the predecessor statute to Sec. 158(d), was repealed by the Bankruptcy Act Amendments of 1984. The two provisions contain precisely the same language. This court discussed the statutory change in In re Amatex Corp., 755 F.2d 1034, 1036-38 (3d Cir.1985)
2
As in Holtzman, this appeal does not present the necessity for adopting "a rule that would allow immediate appellate review of any sanction order imposed upon counsel." Holtzman, 775 F.2d at 539. Consequently, we take no position on that issue at this time
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the First Circuit
No. 16-2242
RITA PURDY,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Sarah H. Bohr, with whom Francis M. Jackson was on brief,
for appellant.
Molly E. Carter, Special Assistant United States Attorney,
with whom Richard W. Murphy, Acting United States Attorney, was
on brief, for appellee.
April 3, 2018
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. This is an appeal from the
district court’s affirmance of an administrative law judge’s
finding that the appellant, Rita Purdy, was not disabled and was
thus not entitled to Supplemental Security Income (SSI)
benefits. Although the record of her attempts to demonstrate
disability is a complicated interplay of medical testimony, the
facts to be considered in this appeal may be stated with
relative economy, so far as they bear on the two issues raised
before us: Whether the administrative law judge (ALJ) lapsed
into error in according only slight weight to the testimony of a
physician who treated Purdy for a non-displaced fracture of her
left femur, and whether the ALJ was entitled to rely on evidence
presented by the appellee Commissioner about available jobs that
Purdy was qualified to perform. We affirm on both issues.
I
An applicant for SSI benefits1 bears the burden of
proof at the first four steps of a five-step procedure
1
The Social Security Administration administers two
separate benefits programs for the disabled: the Social Security
Disability Insurance (SSDI) program under Title II of the Social
Security Act and the SSI program under Title XVI of the Act.
Whereas “[e]ligibility for SSDI depends on the insured person’s
contributions and insured status, SSI provides a minimum income
for disabled people based on need.” Dion v. Sec’y of Health &
Human Servs., 823 F.2d 669, 670 (1st Cir. 1987) (citations
omitted).
- 2 -
established to determine whether an applicant is entitled to
disability benefits. Freeman v. Barnhart, 274 F.3d 606, 608
(1st Cir. 2001) (“The applicant has the burden of production and
proof at the first four steps of the process.”). An applicant
for SSI benefits is disabled “if he is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.”
42 U.S.C. § 1382c(a)(3)(A). The impairment must be “of such
severity that [the applicant] is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” Id. § 1382c(3)(B).
The five-step sequence employed by the Social Security
Administration (the SSA) proceeds as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or
combination of impairments, the application is denied;
3) if the impairment meets the conditions for one of
the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if
the applicant’s “residual functional capacity” is such
- 3 -
that he or she can still perform past relevant work,
then the application is denied; 5) if the applicant,
given his or her residual functional capacity,
education, work experience, and age, is unable to do
any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (quoting 20
C.F.R. § 416.920 (2001)).
Put differently, even if an applicant fails to show
disability at Step 3 because his impairment does not meet the
conditions of a “listed” impairment in the Federal Regulations,
he may still be eligible for benefits. In particular, if the
applicant’s “residual functional capacity”2 is such that he
cannot perform jobs he performed in the past, “the Commissioner
then has the burden at Step 5 of coming forward with evidence of
specific jobs in the national economy that the applicant can
still perform,” or else a finding of disability is required.
Freeman, 274 F.3d at 608.
II
On October 10, 2011, Purdy filed an application for
SSI benefits, alleging disability due to a total knee
replacement in April 2011; thoracic and lumbar spine
degenerative disc disease; right shoulder rotator cuff bone
spurs; severe migraines, nerve damage, and throat problems;
attention deficit hyperactivity disorder (ADHD) and attention
2An applicant’s residual functional capacity “is the most
[he or she] can still do despite [his or her] limitations.” 20
C.F.R. § 416.945(a)(1).
- 4 -
deficit disorder; post-traumatic stress disorder; panic
disorder; substance abuse; and learning difficulties. Purdy’s
claim was initially denied on March 19, 2012, and again on
reconsideration. In November 2012, Purdy filed a request for a
hearing, which took place on February 11, 2014. On February 27,
2014, the administrative law judge who presided over Purdy’s
hearing issued a decision finding that Purdy was not disabled
within the meaning of the Social Security Act and denying her
claim.3
At Step 1, the ALJ found that Purdy had not engaged in
substantial gainful activity since filing her application. At
Step 2, the ALJ found that Purdy had the following severe
impairments (i.e., impairments significantly limiting her
ability to perform basic work activities, see 20 C.F.R.
§ 416.922): “status post knee replacement; degenerative disc
disease; right shoulder rotator cuff bone spurs; chronic pain;
dysthymia; anxiety disorder; ADHD; [and] history of substance
abuse in remission.” Addendum to Appellant’s Amended Initial
3
The SSA employs a four-step administrative-review process.
First, the SSA makes an initial determination of eligibility for
benefits. If dissatisfied with that determination, the
applicant may seek reconsideration. If dissatisfied with the
reconsideration determination, the applicant may request a de
novo hearing before an administrative law judge. Finally, the
applicant may appeal the administrative law judge’s
determination to the Appeals Council, which has the discretion
to deny review. See 20 C.F.R. §§ 416.1400, 416.1467. Once the
applicant has exhausted his administrative remedies, he may seek
review in federal court. 42 U.S.C. § 405(g).
- 5 -
Br. (Add.) 21. The ALJ noted that although Purdy had been
diagnosed with a left hip stress fracture in April 2013,4 the
impairment was not “severe” as there was “no evidence in the
record that it ha[d] persisted or [was] expected to persist for
12 consecutive months as required by 20 CFR §§ 404.1509 and
416.909.” Id. at 21-22.5 At Step 3, the ALJ found that Purdy
did not have an impairment or combination of impairments that
met the conditions for one of the “listed” impairments in the
Social Security regulations. 20 C.F.R. § 416.920(d).
Having determined that Purdy’s impairments did not
meet the conditions for a listed impairment, the ALJ’s next task
was to determine Purdy’s “residual functional capacity based on
all the relevant medical and other evidence in [the] case
record.” 20 C.F.R. § 416.920(e). The ALJ determined that Purdy
retained the residual functional capacity to perform sedentary
work in unskilled jobs with simple instructions and occasional
interaction with others. The ALJ further determined that Purdy
“should never climb ladders, ropes or scaffolds,” “must not use
foot controls,” “must avoid exposure to hazards, such as
unprotected heights,” and could engage in “rare balancing,
4
Presumably, a reference to the injury Purdy’s treating
physician called a fracture of the “left femur.” See 8, infra.
5
The ALJ determined that Purdy’s alleged mental impairments
resulted in only mild or moderate difficulties and did not
entitle her to benefits at Step 3. Add. 22-23. Purdy does not
challenge those determinations here.
- 6 -
crouching, crawling, kneeling, and climbing of ramps or stairs.”
Add. 23-24.
The ALJ explained that though Purdy claimed that she
was unable to lift, bend, sit, stand, walk, or kneel without
suffering extreme pain, Purdy’s “statements concerning the
intensity, persistence and limiting effects of [her] symptoms
[were] not entirely credible.” Add. 25. In particular, Purdy’s
October 2011 “Function Report” indicated that she was able to
cook meals, perform all household chores, go out alone, use
public transportation, shop in stores, manage her finances,
socialize with friends, and attend meetings. These activities,
the ALJ reasoned, established Purdy’s ability to perform
sedentary tasks. The ALJ also observed, based on the notes from
an emergency room visit in April 2012, that “[i]t seems [Purdy]
exaggerates her symptoms and engages in opiate seeking
behavior.” Add. 26.
Significantly for purposes of this appeal, the ALJ
accorded little weight to the opinion of Dr. Michael Kessler as
provided on an SSA-issued form that Dr. Kessler completed
regarding Purdy’s ability to perform work-related activities.
Dr. Kessler found that Purdy could lift or carry less than 10
pounds occasionally (and nothing frequently); could stand or
walk for less than two hours in an eight-hour workday; could sit
for about six hours in an eight-hour workday; was limited in her
- 7 -
ability to push or pull with her lower extremities; could not
climb, balance, kneel, crouch, crawl, or stoop; and could endure
only limited exposure to vibration and humidity. Dr. Kessler
attributed these limitations in Purdy’s functioning to a
“fracture of [the] left femur [with] delayed union.”
In the ALJ’s view, Dr. Kessler’s opinion was
conclusory and unsubstantiated: Dr. Kessler had “simply check
marked boxes indicating [Purdy] had limitations that would
increase the likelihood of [her] obtaining benefits[,] but did
not explain why those limitations were chosen; in particular, he
gave no examples of objective laboratory findings, symptoms or
other medical evidence to support the conclusions.” Add. 27.
By contrast, the ALJ accorded evidentiary weight to
the findings of the State agency’s non-examining medical and
psychological consultants.6 Those physicians had agreed, based
on their analysis of the evidence in January and September 2012,
respectively, that Purdy was capable of performing sedentary
work within the limitations identified by the ALJ.
6 Pursuant to SSA regulations, State agencies may (and often
do) make the initial disability determination. 20 C.F.R.
§§ 404.1610, 1611, 1613. A medical or psychological consultant
“is a member of a team that makes disability determinations in a
State agency, or . . . a member of a team that makes disability
determinations for [the SSA].” Id. § 404.1616(a),(c) (citations
omitted). The “consultant completes the medical portion of the
case review and any applicable residual functional capacity
assessment.” Id.
- 8 -
The ALJ completed Step 4 by finding that Purdy had no
past relevant work and went on to Step 5, where she determined
that there were jobs existing in significant numbers in the
national economy that Purdy could perform. That determination
was based on the testimony of an impartial vocational expert
(VE). The ALJ asked the VE to consider whether jobs were
available in the national economy for someone with Purdy’s age
and education who could lift 10 pounds frequently and 20 pounds
occasionally; could stand and walk for two hours in a workday;
could sit for six hours in a workday; could rarely balance,
crouch, crawl, kneel, or climb; could not work around hazards;
could not climb ladders, ropes, or scaffolds; could not operate
foot controls; and who could perform only simple jobs with
simple instructions, limited changes, and only occasional
interaction with the public.7 The VE testified that such an
individual could perform the sedentary, unskilled jobs of
surveillance system monitor (of which she estimated there were
7
The ALJ’s residual functional capacity determination, as
reflected in the hypothetical she posed to the VE, differed from
Dr. Kessler’s in two key respects. First, whereas Dr. Kessler
indicated that Purdy could not frequently lift or carry weight,
the ALJ determined that she could carry up to 10 pounds with
frequency. The ALJ’s determination in that regard was
consistent with that of the agency’s non-examining physicians.
Second, whereas Dr. Kessler indicated that Purdy could stand or
walk for less than two hours in an eight-hour workday, the ALJ
indicated that Purdy could stand or walk for two hours in an
eight-hour workday. These differences were material to the VE,
who testified that if Dr. Kessler’s opinion were accepted and
accurate, there would be no jobs available for Purdy to perform.
- 9 -
11,000 jobs in the national economy); document preparer (20,000
jobs in the national economy); and stem mounter (1,400 jobs in
the national economy). On the basis of that testimony, the ALJ
found that Purdy was not disabled within the meaning of the
Social Security Act and denied her application.
The SSA’s Appeals Council denied Purdy’s request for
review, rendering the ALJ’s decision the Commissioner’s final
determination, which Purdy then appealed by bringing this action
in federal district court. The magistrate judge recommended
affirming the Commissioner’s decision, and the district court,
on de novo review, adopted the recommendation.
III
We review the district court’s decision to affirm or
reverse a final decision of the Commissioner de novo and the
Commissioner’s underlying decision for substantial evidence and
conformity to relevant law. Seavey, 276 F.3d at 9 (citing 42
U.S.C. § 405(g)). Substantial-evidence review is more
deferential than it might sound to the lay ear: though certainly
“more than a scintilla” of evidence is required to meet the
benchmark, a preponderance of evidence is not.
Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56
(1st Cir. 2003) (internal quotation marks omitted). Rather,
“[w]e must uphold the [Commissioner’s] findings . . . if a
reasonable mind, reviewing the evidence in the record as a
- 10 -
whole, could accept it as adequate to support [her] conclusion.”
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981) (per curiam). “[I]ssues of credibility and the
drawing of permissible inference from evidentiary facts are the
prime responsibility of the [Commissioner],” and “the resolution
of conflicts in the evidence and the determination of the
ultimate question of disability is for [her], not for the
doctors or for the courts.” Id. (internal quotation marks
omitted).
As mentioned before, Purdy’s first claim of error is
that the ALJ assigned inadequate weight to the opinion of her
treating orthopedic physician, Dr. Kessler, as to her physical
limitations. The ALJ’s factual findings must be supported by
substantial evidence and the legal standards must be correct.
The relevant legal standard for a claim filed before March 27,
2017 (as Purdy’s was) is the rule that a treating physician’s
opinion is controlling if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. § 416.927(c)(2). And even if not
deemed controlling, a treating physician’s opinion is entitled
to weight that reflects the physician’s opportunity for direct
- 11 -
and continual observation. Id.8 There was, however, no error in
the ALJ’s determination to give “little” weight to Dr. Kessler’s
opinion.
To begin with, Dr. Kessler’s opinion as reflected on
the SSA-issued form made little sense on its face. Dr. Kessler
indicated both that Purdy had experienced the same physical
limitations since 2011 and that the cause of her limitations was
the 2013 femur injury. Moreover, Dr. Kessler provided no
discussion or analysis of his own prior observations, as the ALJ
noted when she described his submission as merely checking the
right boxes. That itself goes a long way toward supporting the
ALJ’s determination to accord Dr. Kessler’s opinion little
weight. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)
(“The ALJ need not accept an opinion of a physician-even a
treating physician-if it is conclusionary and brief and is
unsupported by clinical findings.”).
8
The agency has eliminated the treating-physician rule for
purposes of claims filed on or after March 27, 2017. The agency
no longer “defer[s] or give[s] any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [an
applicant’s] medical sources.” 20 C.F.R. § 416.920c(a).
Instead, medical opinions and findings are evaluated for their
persuasiveness according to a uniform set of considerations.
Id. § 416.920c(c). These include the source’s relationship with
the claimant, but most important under the new regulations are
supportability and consistency with the rest of the record. Id.
§ 416.920c(b)(2).
- 12 -
But even more significant were Dr. Kessler’s
examination and treatment notes. Quite simply, Dr. Kessler’s
medical records of treating Purdy were at odds with his
conclusions purporting to support Purdy’s application. Purdy
was diagnosed with a probable stress fracture in April 2013.
Dr. Kessler’s notes tracking the progress of the fracture made
it clear that her prognosis was good. In July 2013, for
example, Dr. Kessler noted that “there is a very, very strong
chance that she will heal satisfactorily with no surgery.”
There was no displacement of the bone, and the required
treatment was to avoid stress on the area so nature could take
its course. The last mention of the femur in Dr. Kessler’s
records was on November 5, 2013, some three months before
Purdy’s hearing before the ALJ, and then Dr. Kessler noted that
Purdy had a good range of motion in both hips and walked with
minimal to no limp and without a cane (despite his
recommendation). Though Purdy was continuing to experience
pain, Dr. Kessler noted that “chances [were] she [would] end up
getting away without having any surgery,” and that even if the
fracture did “fall apart,” which Dr. Kessler labelled a “very
small” risk, it could be fixed with surgery. Dr. Kessler’s
notes regarding Purdy’s three further appointments before her
hearing before the ALJ focused on a wrist injury and do not
- 13 -
mention the stress fracture, or any pain associated with it, at
all.
No one could reasonably read these records as support
for finding or predicating a twelve-month duration of any
impairment from the fracture. The contrary is true. There was
therefore no legal error in refusing to treat Dr. Kessler’s
opinion as controlling or in according it little weight for
purposes of determining whether the fracture constituted a
severe impairment.9 For the same reasons, the ALJ did not err in
according Dr. Kessler’s opinion little weight for purposes of
determining Purdy’s residual functional capacity. Based on the
record and the particular circumstances of this case, the ALJ
was entitled to make a “common-sense judgment[]” that the
healing stress fracture did not preclude Purdy from performing
some sedentary work. Gordils v. Sec’y of Health & Human Servs.,
921 F.2d 327, 329 (1st Cir. 1990). An applicant’s residual
functional capacity is, after all, an administrative finding
reserved to the Commissioner. 20 C.F.R. §§ 416.927(d)(2),
416.946.
9
The appellant also takes the ALJ to task for suggesting
that Dr. Kessler’s unsupported opinion reflected personal
sympathy for his patient. It is true, as the Commissioner
concedes, that this was error, in the sense that the governing
regulations do not list suspicions of sympathy as grounds for
discounting a physician’s opinion. But the error was
insignificant in the context of this case: sympathy or no
sympathy, the doctor’s records just described do not support his
findings as to Purdy’s physical limitations.
- 14 -
As her second issue, Purdy says it was error for the
ALJ to rely on the testimony of a VE to conclude that there were
particular numbers of jobs that Purdy could perform, thus
precluding (at Step 5) a conclusion that she was disabled. The
nub of the objection is that the VE testified on the basis of
numbers supplied by Job Browser Pro software available from a
concern called SkillTRAN.
SkillTRAN’s software has been recognized by at least
one district court to be widely relied upon by vocational
experts in estimating the number of relevant jobs in the
national economy. See, e.g., Wood v. Berryhill, No. 17 Civ.
5430, 2017 WL 6419313, at *3 (W.D. Wash. Nov. 17, 2017)
(describing Job Browser Pro as “the commonly accepted software
used by . . . vocational experts”). The software takes as its
starting point the Dictionary of Occupational Titles (the DOT),
a Department of Labor publication that identifies thousands of
jobs by name and describes the skills and capacity for physical
exertion required to perform each.10 The DOT “just defines
10
The DOT, which has not been updated since 1991, has been
criticized by some courts as “obsolete.” Herrmann v. Colvin,
772 F.3d 1110, 1113 (7th Cir. 2014). Nevertheless, the Social
Security Administration continues to treat the DOT as a
“reliable” source of job data and takes administrative notice of
its contents. 20 C.F.R. § 404.1566(d)(1). The Social Security
Administration is “developing a new Occupational Information
System . . ., which will replace the DOT as the primary source
of occupational information SSA staff use in [their] disability
adjudication process.” Occupational Information System Project,
- 15 -
jobs,” however; “[i]t does not report how many such jobs are
available in the economy.” Brault v. Soc. Sec. Admin., Comm’r,
683 F.3d 443, 446 (2d Cir. 2012) (per curiam). And while the
Government collects job data, it does so at an aggregated group
level, rather than by DOT occupation, which renders estimating
the number of jobs available in the economy for a given DOT
occupation no easy task. SkillTRAN’s software attempts to
address that shortcoming through its interpretation of the
available data.
The objection to the evidence given by the VE rested
on her testimony that she did not know what precise analysis
SkillTRAN followed to produce the job-number estimates she gave
for jobs that Purdy could perform. On the basis of that
testimony, and the third-party source for all figures used in
the computations, Purdy argues that the VE’s testimony should
not be treated as expert evidence, but simply as parroting
numbers immune to effective challenge by an applicant for
benefits.
At the threshold, Purdy faces high hurdles.
Admissibility of evidence before an ALJ presiding over Social
Security proceedings is not subject to the Federal Rules of
SSA,
https://www.ssa.gov/disabilityresearch/occupational_info_systems
.html. It plans to roll out the system in 2020 and to update it
every five years. Id.
- 16 -
Evidence, and an ALJ is given express authority to assess the
reliability of evidence offered. See 42 U.S.C. § 405(b)(1)
(“Evidence may be received at any hearing before the
Commissioner of Social Security even though inadmissible under
rules of evidence applicable to court procedure.”); 20 C.F.R.
§ 404.950(c) (“[T]he administrative law judge may receive any
evidence at the hearing that he or she believes is material to
the issues . . . .”); see also Richardson v. Perales, 402 U.S.
389, 400 (1971) (“[S]trict rules of evidence, applicable in the
courtroom, are not to operate at social security hearings so as
to bar the admission of evidence otherwise pertinent[,] and
. . . the conduct of the hearing rests generally in the
examiner’s discretion.”).
To be sure, in spite of the breadth of judgment thus
open to an ALJ, there have developed, not one, but two schools
of thought for assessing the reliability of evidence in
proceedings like this one. Drawing inspiration from Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Federal Rule of Evidence 702, the Seventh Circuit has charged
ALJs with a version of the gate-keeping role that federal courts
must play when considering whether to admit expert testimony.
While recognizing that Rule 702 does not formally apply in
Social Security proceedings, the Seventh Circuit has reasoned
that “because an ALJ’s findings must be supported by substantial
- 17 -
evidence, an ALJ may depend upon expert testimony only if the
testimony is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910
(7th Cir. 2004). And “[i]f the basis of the vocational expert’s
conclusions is questioned at the hearing . . . then
the ALJ should make an inquiry (similar though not necessarily
identical to that of Rule 702) to find out whether the purported
expert’s conclusions are reliable.” Donahue v. Barnhart, 279
F.3d 441, 446 (7th Cir. 2002) (emphasis removed). Thus, in
McKinnie, where the vocational expert’s proffered basis for her
job-estimate figures was vague and unsubstantiated by
documentation, the Seventh Circuit held that the ALJ erred by
not enquiring into the reliability of the vocational expert’s
opinion. 368 F.3d at 911.
The Seventh Circuit stands alone, however, in imposing
a Daubert-like requirement on ALJs in Social Security cases.
The Ninth Circuit has disclaimed any such standard for testing
the reliability of a VE’s testimony regarding the number of
relevant jobs in the national economy. Rather, that court has
explained that “[a] VE’s recognized expertise provides the
necessary foundation for his or her testimony.” Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). And the Second
Circuit, too, has cast significant doubt on the Seventh
Circuit’s approach. In particular, in Brault, the Second
Circuit responded to a challenge similar to the one lodged here
- 18 -
with the observation that the Seventh Circuit’s approach was
inconsistent with Congress’s clear determination that the
Federal Rules of Evidence not apply in Social Security
proceedings, see 42 U.S.C. § 405(b)(1), Richardson, 402 U.S. at
400–01, and deemed it puzzling that the “the Seventh Circuit
would acknowledge . . . that ALJs are not bound by the Rules of
Evidence, but then turn around and require ALJs to hew so
closely to Daubert’s principles,” Brault, 683 F.3d at 449. For
that matter, the Second Circuit was not persuaded that a
Daubert-like hearing would be useful given the pertinent
standard of review. The “substantial evidence” standard, the
court noted, is “extremely flexible,” “giv[ing] federal courts
the freedom to take a case-specific, comprehensive view of the
administrative proceedings, weighing all the evidence to
determine whether it was ‘substantial.’” Brault, 683 F.3d at
449. The Second Circuit “thus affirmed, not on any Daubert
basis, but instead on typical ‘substantial evidence’ grounds.”
Id. at 450.11
We fail to see an adequate answer to the Second
Circuit’s argument. This is not to say that we could go to the
11
Ultimately, the Second Circuit in Brault declined to
resolve the extent to which an ALJ must ever test a VE’s
testimony, simply noting its agreement with the Seventh Circuit
to the extent that “evidence cannot be substantial if it is
‘conjured out of whole cloth.’” 683 F.3d at 450
(quoting Donahue, 279 F.3d at 446).
- 19 -
extreme of approving reliance on evidence of the software
numbers offered by a witness who could say nothing more about
them than the name of the software that produced them.12 But
that is not the case here. The VE, whose qualifications Purdy
did not challenge, testified that the job numbers were from the
Bureau of Labor Statistics and were stated in reference to job
descriptions in the DOT; that is, they were specific to jobs,
not to broad amalgams of jobs, some of which an applicant might
be able to perform but not others. The VE testified that the
software’s conclusions on the described basis were generally
accepted by those who are asked to give the sort of opinions
sought here. She testified, in other words, to a reliable and
practical basis of fact on which analysis was performed, and to
a wide reputation for reliability. Given the broad discretion
on the part of an ALJ, and the complete lack of any competing
evidence or critique, it is hard to see an abuse of discretion
in the judge’s refusal to demand, say, that a VE perform her own
data-gathering field work, or be a statistician capable of
duplicating the software analysis of the basic material. See
Pena v. Comm’r of Soc. Sec., 489 Fed. App’x 401, 403 (11th Cir.
2012) (rejecting similar challenge because “ALJ was entitled to
12 Nor do we foreclose the possibility that an applicant
could demonstrate the methodology employed by Job Browser Pro
(or any other software) to be so unreliable that it cannot
constitute substantial evidence. No such attempt was made here.
- 20 -
rely upon the VE’s testimony without requiring the VE to provide
a comprehensive statistical explanation of how he arrived at
. . . job number figures.”). Nor does Purdy seriously confront
the question of what more might be required. Rather, she simply
couches her objection in the general terms that more personal
“knowledge, experience or expertise” ought to be required of a
VE relying on Job Browser Pro. At this level of generality, the
argument is too ethereal to carry the day in demonstrating legal
error in the ALJ’s judgment to rely on the testimony here.13
IV
The ALJ’s determination that Purdy was not disabled
within the meaning of the Social Security Act was supported by
substantial evidence. We affirm.
13Purdy also contends that the ALJ mischaracterized the
statements of a physician who examined her in 2012 and
improperly credited the opinions of the State agency non-
examining physicians. Purdy did not adequately present these
arguments in her objections to the magistrate judge’s
recommended decision. They are therefore waived. See Keating
v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.
1988).
- 21 -
| {
"pile_set_name": "FreeLaw"
} |
ORIGl~J.\L FILED
Jfn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns MAR 24 2011
U.S. COURT OF
No. 16-264C FEDERAL CLAIMS
(Filed Under Seal: January 31, 2017)
(Reissued for Publication: March 24, 2017)*
*************************************
CARL PARK.ER, Individual and *
*
Administrator for the Estate of Gary L.
Parker, * RCFC 12(b)(l); RCFC 12(b)(6); Subject
* Matter Jurisdiction; Failure to State a
Plaintiff, * Claim Upon Which Relief Can Be Granted;
* Pigford Litigation; Section 741; Consent
v. * Decree; Equal Credit Opportunity Act;
* Contractual Takings; Unenacted
THE UNITED STATES, * Legislation; 2008 Farm Bill
*
Defendant. *
*************************************
Carl Parker, Ashburn, GA, pro se.
Daniel S. Herzfeld, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
In this case, plaintiff Carl Parker, individually and as administrator for the estate of Gary
L. Parker, seeks damages related to (1) the purported failure of the Farm Service Agency
("FSA") of the United States Department of Agriculture ("USDA") to abide by the consent
decree in the Pigford class-action discrimination litigation and (2) ongoing discrimination by the
USDA. Defendant United States moves to dismiss the complaint for lack of subject matter
jurisdiction and, alternatively, for failure to state a claim upon which this court can grant relief.
For the reasons set forth below, the court grants defendant's motion to dismiss and denies Carl
Parker's motion for summary judgment as moot.
* The court provided the parties with an opportunity to suggest redactions to this ruling.
In a February 28, 2017 status report, defendant indicated that no redactions were necessary and
that it had been unsuccessful in attempting to communicate with Carl Parker regarding proposed
redactions. To date, Carl Parker has not suggested any redactions. Accordingly, the court
reissues this decision without redactions.
I. BACKGROUND
A. Pigford I Litigation
On August 28, 1997, three African-American farmers filed a putative class action against
the USDA to obtain redress for a long pattern of discrimination against African-American
farmers in its credit and benefit programs. 1 Pigford v. Glickman ("Pigford I"), 185 F.R.D. 82,
86-89 (D.D.C. 1999), affd, 206 F.3d 1212 (D.C. Cir. 2000). Although the USDA had a process
in place for resolving discrimination complaints, the system had been effectively nonexistent for
over a decade prior to initiation of the lawsuit, leaving many wronged farmers without relief. Id.
at 88. This systemic discrimination, which violated the Equal Credit Opportunity Act
("ECOA''), 15 U.S.C. §§ 1691-1691f (2012), led to a significant decline in the number of
African-American farmers throughout the United States. Pigford I, 185 F.R.D. at 87. An initial
class was certified on October 9, 1998. Id. at 90.
Prior to 2010, the statute oflimitations on alleged ECOA violations was two years.
15 U.S.C. § 169le(f) (2006); see Dodd-Frank Wall Street Reform and Consumer Protection Act,
Pub. L. No. 111-203, § 1085(7), 124 Stat. 2083, 2085 (2010)(increasing the statute oflimitations
on ECOA claims from two years to five years). On October 21, 1998, Congress enacted the
Agriculture, Rural Development, Food and Drug Administration, and Related Agencies
Appropriations Act of 1999, Pub. L. No. 105-277, div. A, sec. lOl(a), 112 Stat. 2681, 2681 to
2681-50 (1998). Section 741 of that Act ("Section 741") waived the statute oflimitations for
actions filed within two years of its passage-i.e., until October 21, 2000-if a complaint had
been filed with the USDA before July 1, 1997, alleging nonemployment discrimination between
January 1, 1981, and December 31, 1996. Id.§ 741, 112 Stat. at2681-30 to -31. Section 741
also permitted aggrieved farmers to obtain an administrative hearing on the record in lieu of
pursuing a judicial remedy. Id.
On January 5, 1999, a newly certified class in Pigford I was defined as:
All African American farmers who ( 1) farmed, or attempted to
farm, between January 1, 1981 and December 31, 1996; (2)
applied to the United States Department of Agriculture (USDA)
during that time period for participation in a federal farm credit or
benefit program and who believed that they were discriminated
against on the basis of race in USDA's response to that
application; and (3) filed a discrimination complaint on or before
July 1, 1997, regarding USDA's treatment of such farm credit or
benefit application.
1
The court derives the facts in this section from Carl Parker's complaint ("Comp!."), the
exhibits attached to the complaint ("Comp!. Ex."), the appendix to defendant's motion to dismiss
("Def.' s App."), the attachments to defendant's reply in support of its motion to dismiss ("Def.' s
Reply Attach."), filings in related litigation, and various judicial and administrative decisions.
-2-
185 F.R.D. at 92. Following settlement negotiations, id. at 89-92, a consent decree was approved
as "fair, adequate, and reasonable" on April 14, 1999, id. at 86. 2 Its purpose was to ensure that
"in their dealings with USDA, all class members receive full and fair treatment that is the same
as the treatment accorded to similarly situated white persons." Def.'s App. A2. The estimated
value of the settlement at the time was $2.25 billion, constituting the "largest civil rights
settlement in the history of this country." Pigford I, 185 F.R.D. at 95.
Under the terms of the consent decree, class members could opt out of class treatment
within 120 days of entry of the consent decree. Def.' s App. A5. Otherwise, class members were
generally required to submit a claim package within 180 days of entry of the consent decree-i.e,
by October 12, 1999---<lemonstrating class membership and electing to proceed under one of two
tracks. Id. at AS-I 0. Class members missing this deadline who could demonstrate that their late
filing was due to "extraordinary circumstances beyond [their] control" were allowed to file late
petitions. In re Black Farmers Discrimination Litig. ("Pigford II"), 856 F. Supp. 2d I, 11
(D.D.C. 2011) (internal quotation marks omitted), appeal dismissed sub nom. Latham v. Vilsack,
Nos. 11-5326, 11-5334, 12-5019, 2012 WL 10236550 (D.C. Cir. July 25, 2012). Such relief was
extremely limited and did not extend to those who "had only recently learned" of the consent
decree; out of the 61,252 would-be class members who sought to file late claims, only 2,585
were allowed to do so. 3 Id. Including both timely submitted claims and late claims, over 22,700
claim packages were submitted by "individuals eligible to pursue relief under the terms of the
consent decree." Id.
The choice between the two tracks cmTied "enormous significance. Under Track A, the
class member [had) a fairly low burden of proof but his recovery [was] limited. Under Track B,
there [was] a higher burden of proof but the recovery [was] unlimited." 4 Pigford I, 185 F.R.D. at
96. Once made, the choice of which track to pursue was binding; in other words, dissatisfied
Track B claimants could not then proceed under Track A. Id. at 107.
Farmers proceeding under Track A were required to show racial discrimination under a
"substantial evidence" standard. Def.'s App. Al3; see also id. at A4 (defining "substantial
evidence"). Relief available to farmers choosing to proceed under Track A was limited to (1) a
2
The consent decree is reproduced in its entirety in defendant's appendix at pages Al to
A29. It can also be found on the docket of Pigford I at ECF No. 167.
3
The 61,252 figure does not include those who failed to submit a petition to file a late
claim by the deadline for doing so. Pigford II, 856 F. Supp. 2d at 11. There were as many as
25,000 of these "late-late" possible class members whose requests to file a late claim were not
considered. Id.
4
The overwhelming majority of claimants chose to proceed under Track A. Pigford v.
Veneman, 292 F.3d 918, 921 (D.C. Cir. 2002); Pigford II, 856 F Supp. 2d at 11. Only 170
claimants sought Track B relief. Pigford II, 856 F. Supp. 2d at 11. Overall, "approximately
16,000" claimants were successful in obtaining "direct payments, loan forgiveness, and tax
relief." Id.; see also id. at 17 (noting that the aggregate payout to successful claimants was over
$1 billion).
-3-
one-time $50,000 cash payment, (2) discharge of all outstanding debts to the USDA that were
the "subject of the ECOA claim(s) resolved in the class member's favor by the adjudicator," (3)
an additional tax offset payment made directly to the Internal Revenue Service of twenty-five
percent of the sums expended for the one-time payout and debt relief, (4) termination of
foreclosure proceedings against real property "in connection with the ECOA claim(s) resolved in
the class member's favor by the adjudicator," and (5) injunctive relief including one-time priority
loan consideration and technical assistance. Id. at A14, A19-20; accord Pigford I, 185 F.R.D. at
97. An adjudicator's decision under Track A was not subject to "review in any court or before
any tribunal ... with respect to any claim that [was], or could have been decided by the
adjudicator." Def.'s App. A16; accord Pigford I, 185 F.R.D. at 97.
Farmers electing to proceed under Track B were provided a full-day evidentiary hearing
before an arbitrator, who would determine whether there had been racial discrimination under a
higher "preponderance of the evidence" standard. Def.'s App. Al8; accord Pigford I, 185 F.R.D.
at 97; see also Def.'s App. A4 (defining "preponderance of the evidence"). The same injunctive
relief that was available under Track A was also available under Track B, but under Track B, the
monetary damages were unlimited, encompassing debt relief, "actual damages" available under
the ECOA, and the additional tax offset payment. Pigford I, 185 F.R.D. at 97; Def.'s App. Al8.
Like an adjudicator's decision for Track A claimants, an arbitrator's decision for Track B
claimants was not subject to "review in any court or before any tribunal ... with respect to any
claim that [was], or could have been decided, by the arbitrator.'' Def.'s App. Al9; accord
Pigford I, 185 F.R.D. at 97.
Generally spealdng, debts incurred between January 1, 1981, and December 31, 1996,
that were "affected" by discrimination could be discharged under the consent decree. Pigford I,
185 F.R.D. at 97; Def.'s App. A14, A18; Comp!. Ex. A at 2. The date of discrimination and the
type ofloan were important findings. Comp!. Ex. A at 2. Loans issued under the same
program-such as the farm operating loan program or the farm ownership loan program-are
considered the same type. 5 Id. When a particular loan was found to have been affected by
discrimination, additional debt of the same type as the affected loan was also eligible for
discharge if (1) it was incurred at the same time as or later than the affected loan and (2) the
original application for the additional debt had been filed by December 31, 1996. Id. at 2-3.
Later rescheduling of a particular loan would not alter its inception date. Id. at 3; see also
Pigford v. Schafer, 536 F. Supp. 2d 1, 10-12 (D.D.C. 2008) (interpreting "incur" as the loan
origination date irrespective of any later rescheduling).
A dissatisfied claimant under either Track A or Track B could ask the court-appointed
monitor to direct the adjudicator or arbitrator to "reexamine a claim where the Monitor
determines that a clear and manifest error has occurred in the screening, adjudication, or
arbitration of the claim .... " Def.'s App. A21; accord Pigford I, 185 F.R.D. at 97, 107-08. No
other appeals were available to claimants. Pigford I, 185 F.R.D. at 97, 107-08; Def.'s App. A16,
5
The farm operating and farm ownership loan programs are two separate programs
among the various agricultural credit programs overseen by the FSA. Comp!. Ex. A at 2; see
also 7 U.S.C. § 6932(b) (2012).
-4-
Al 9. Additionally, the USDA had no right to appeal decisions of either adjudicators or
arbitrators. Pigford I, 185 F.R.D. at 108. The court-appointed monitor was also available to
provide assistance in the event the consent decree was alleged to have been violated. Id. at 98.
The United States District Court for the District of Columbia ("DC district court")
retained jurisdiction to enforce the consent decree. 6 Pigford I, 185 F.R.D. at 98; Def.'s App.
A22, A27; see also Pigford, 206 F.3d at 1218-19 (discussing the DC district court's powers to
enforce the decree through contempt proceedings or modification of the consent decree); Def.'s
App. Al3 (outlining steps that must be taken prior to seeking a court order). A July 14, 2000
stipulation and order clarified the review process "by establishing a framework for deadlines by
which all Petitions would have to be submitted to the Monitor." Pigford v. Glickman, Nos. 97-
1978, 98-1693, 2000 WL 34292618, at *l (D.D.C. Nov. 8, 2000). Claimants were given 120
days to seek monitor review of an adverse decision on Track A or Track B claims. Id. at *1 n.1.
Although some flexibility regarding the deadline was provided, those who did not meet the
deadline were ultimately denied further review by the monitor. Pigford v. Johanns, 416 F.3d 12,
14-15 (D.C. Cir. 2005).
On November 2, 2015, the DC district court entered a wind-down stipulation and order
te1minating the stipulations of the consent decree, with limited exceptions. Def.'s App. A30-37.
The exceptions relevant to this case are those providing that (1) paragraph 9(a)(iii)(A) of the
consent decree is still valid, and (2) the DC district court retains jurisdiction to enforce the wind-
down stipulation and order and the remaining provisions of the consent decree. Id. at A32, A36.
Paragraph 9(a)(iii)(A) of the consent decree provides that:
USDA shall discharge all of the class member's outstanding debt
to USDA that was incurred under, or affected by, the program(s)
that was/were the subject of the ECOA claim(s) resolved in the
class member's favor by the adjudicator. The discharge of such
outstanding debt shall not adversely affect the claimant's eligibility
for future participation in any USDA loan or loan servicing
program.
Id. at Al4. In other words, the USDA was not relieved of its obligation to discharge affected
debt or its obligation to ensure that such discharge did not negatively impact farmers applying
for loans in the future.
B. Pigford II Litigation
In 2008, Congress "resurrected the claims of those who had unsuccessfully petitioned the
Arbitrator for permission to submit late claim packages" following "extensive hearings on the
Pigford [IJ case and the consent decree." Pigford II, 856 F. Supp. 2d at 11. The Food,
Conservation, and Energy Act of 2008 ("2008 Farm Bill") recognized that "all pending claims
and class actions brought against the Department of Agriculture ... based on racial, ethnic, or
6
To date, there have been nearly 2,000 docket entries in the case since the consent
decree was approved.
-5-
gender discrimination in farm program participation should be resolved in an expeditious and
just manner," and provided relief in the DC district court for would-be Pigford claimants who
had previously submitted a late-filing request and had "not previously obtained a determination
on the merits of a Pigford claim .... " Pub. L. No. 110-246, §§ 14011-14012, 122 Stat. 1651,
2209-12. 7 Section 14012 of the 2008 Farm Bill ("Section 14012") was designed to allow "a full
determination on the merits for each Pigford claim previously denied that determination" based
on a late-filed request. Id. § 14012(d), 122 Stat. at 2210. Such previously denied Pigford I
claimants ("Pigford II claimants") were given two years from the 2008 Farm Bill's enactment-
i.e., until June 18, 2010-to file a claim in the DC district court. Id.§ 14012(b), (k), 122 Stat. at
2210, 2212. Section 14012 also prohibited foreclosures on property related to a Pigford claim
while such claim was pending. Id.§ 14012(h), 122 Stat. at 2211-12. Approximately 40,000
people filed complaints in the DC district court pursuant to Section 14012 between May 2008
and June 2010. Pigford II, 856 F. Supp. 2d at 13. Congress ultimately capped Pigford II
damages at $1.25 billion in the aggregate. Claims Resolution Act of2010, Pub. L. No. 111-291,
§ 20l(b), 124 Stat. 3064, 3070.
On October 27, 2011, the DC district court certified the Pigford II class and approved a
proposed settlement agreement as "fair, adequate, and reasonable." 8 Pigford II, 856 F. Supp. 2d
at 22, 27. An appeal of the class certification was dismissed. Latham, 2012 WL 10236550. The
DC district court approved the distribution of settlement funds on August 23, 2013. In re Black
Farmers Discrimination Litig., No. 08-mc-0511, 2013 WL 4507951 (D.D.C. Aug. 23, 2013).
C. Carl Parker's Farm Loans
Carl Parker, who identifies himself as an African-American farmer, has resided in
Ashburn, Georgia his entire life. Comp!. ii l; Comp!. Ex.Bat 33; Comp!. Ex.Cat 33; Def.'s
App. A57, Al04, A212. He farmed peanuts, soybeans, corn, wheat, and cotton. Def.'s App.
A64, A69. On April 24, 1984, Carl Parker received a supervised farm operating loan of $89,000
from the Worth County Farmers Home Administration ("FmHA") office of the USDA. 9 Def. 's
7
Congress initially enacted the 2008 Faim Bill on May 22, 2008. See Food,
Conservation, and Energy Act of2008, Pub. L. No. 110-234, 122 Stat. 923 (repealed 2008). On
June 18, 2008, Congress enacted another version of the 2008 Farm Bill, see Pub. L. No. 110-246,
122 Stat. at 1651, in which it repealed the initial statute, see id.§ 4, 122 Stat. at 1664. Sections
14011and14012 are identical in both versions of the 2008 Farm Bill. Compare Pub. L. No.
110-234, § 14011-14012, 122 Stat. 923, 1447-50, with Pub. L. No.110-246, §§ 14011-14012,
122 Stat. 1651, 2209-12. Both parties refer and/or cite to the repealed version of the 2008 Farm
Bill in their filings. See Comp!. ii 9; Def.'s Mot. to Dismiss 17. Because the pertinent provisions
are identical, the court treats such references/citations as being to the later-enacted version of the
statute.
8
The settlement agreement included provisions for paying awards, due to the limited
amount of funds that Congress had appropriated for that purpose. Pigford II, 856 F. Supp. 2d at
23.
9
Farm operating loans may be used to "pay annual farm operating and family living
-6-
App. A64, A96. Forty percent of the loan proceeds were released upon funding, which
represented reimbursement for operating expenses that Carl Parker had charged to his credit
card, machinery repair, and family living expenses. Id. at Al 18. As a supervised loan, farm
purchases made with the remaining loan proceeds were subject to FmHA approval. Id. at A65,
A108-09, Al 18; accord 7 C.F.R. §§ 761.51, 761.54. Delays in waiting for such approval led to
(1) problems with planting and (2) delayed and lower crop yields. Def.'s App. A67-68, Al 18.
Meanwhile, white farmers who were in worse financial situations than Carl Parker received
unsupervised loans from the USDA. Def.'s App. A116-17, A141.
In addition to his April 24, 1984 loan, Carl Parker also received a farm operating loan on
March 29, 1985, two farm operating loans on February 28, 1986, and a farm ownership loan on
February 26, 1986. IO Id. at A42, A64, A96. The 1985 loan was alleged to be supervised, id. at
A68, Al 08, but USDA records indicate that the loan was unsupervised because all loan proceeds
were distributed at closing, id. at A128. Both the 1984 and 1985 loans were eventually paid back
in full. Id. at A42, A96-97. The original principal amounts and interest rates of the two 1986
operating loans were (1) $53,136.84 at 7.25 percent and (2) $91,786.87 at 7.259 percent. Id. at
A47, A50. The record is unclear regarding the original principal amount of the 1986 ownership
loan. Id. at A64. All of the 1986 loans were made at "limited resource" interest rates, id. at A96-
97, A 123, but Carl Parker claims he was never made aware of this fact until approximately two
decades later. Id. at A104; Comp!. Ex.Bat 33. A limited resource interest rate "is an interest
rate normally below the [USDA's] regular interest rate, which is available to applicants unable to
develop a feasible plan at regular rates" while requesting loans or loan servicing. 7 C.F.R. §
761.2. According to Carl Parker, the FmHA also failed to provide appropriate loan services in
that he was not given technical assistance in completing the applications, nor was he informed of
the "plethora" of alternative loan programs for which he was potentially qualified. Def. 's App.
A65-66.
Carl Parker's applications for farm operating loans of$93,000 in 1987, 1988, and 1989
were denied on March 6, 1987, May 4, 1988, and April 28, 1989, respectively, due to concerns
about repayment ability and cash flow. Id. at A64, A96, Al 19, Al28-29. Carl Parker attributes
his cash flow problems during those years to circumstances beyond his control, such as drought
conditions that impacted his crops. Id. at Al03; Comp!. Ex.Bat 32. Although he attempted to
rent more land during that time, he was unsuccessful. Comp!. Ex.Bat 32; Def.'s App. A103,
A130. In addition, he submitted farm and home plans each year to be reworked by the FmHA
county supervisor, but to no avail. Comp!. Ex.Bat 32; Def.'s App. A103, A131. Throughout
his interactions with the FmHA staff, Carl Parker was left with the impression that they had
already determined that they would deny his loan applications. Comp!. Ex.Bat 32; Def. 's App.
A103, A130.
expenses .... " 7 C.F.R. § 764.252(c) (2016); see 7 C.F.R. § 764.251 (listing uses for farm
operating loans).
IO Farm ownership loans may be used to acquire, enlarge, or make a down payment on a
farm; make qualified capital improvements to a farm; to promote soil and water conservation and
protection; and for certain financing activities. 7 C.F.R. § 764.151.
-7-
On May 24, 1989, Carl Parker rescheduled his outstanding USDA loans. Def.'s App.
A42, A96. Upon rescheduling, the principal amounts of his operating loans were $60,746.69 and
$110,693.08, both at 6.5 percent interest over fifteen years. Id. at A42, A46, A49. The principal
amount of Carl Parker's ownership loan upon rescheduling was $168, 164.01.'1 Id. at A42.
However, he was not given any other assistance by the USDA. Id. at Al 03-04, A13 l; Compl.
Ex.Bat 32-33. Furthermore, he received no help when his home was damaged by fire in 1989.
Compl. Ex.Bat 33; Def.'s App. Al04. Instead, the UDSA applied the insurance proceeds to his
outstanding loan balance. Id. As a result, Carl Parker resorted to private funding through Gold
Kist Financing to keep his farm operational until 1991. 12 Compl. Ex.Bat 33; Def.'s App. Al04,
Al3 l. He experienced further adversity in 1990 when his daughter, then four years old,
sustained third-degree bums in another fire and was confined to a hospital in Augusta, Georgia-
204 miles away from home-for six months. Compl. Ex.Bat 33; Def.'s App. Al04. In 1990,
the FmHA offered Carl Parker "an opportunity to buy out his USDA loans at a net recovery
value" after he was unable to reschedule his loans "due to [his] inability to project a positive cash
flow," and he lost his appeal of that decision. Def. 's App. A96.
A January 1992 bankruptcy filing (which was dismissed in 1994) forced him out of the
farming business in 1993. Id. at A69, A96; see also In re Parker Bros., a P'ship, No. 92-10055
(Bankr. M.D. Ga.) (filed by Gary and Carl Parker). In February 1998, Carl Parker filed a second
bankruptcy petition to stop the USDA from foreclosing on his property. Compl. Ex.Bat 33;
Def.'s App. Al04; see also In re Parker Bros., a P'ship, No. 98-10013 (Bankr. M.D. Ga.) (filed
by Gary and Carl Parker). Melvin Bishop, president of the Black Farmers and Agriculturalists
Association ("BF AA"), made several telephone calls to the USDA offices in Atlanta and
Washington, DC on his behalf, and was successful in halting the foreclosure. Compl. Ex. B at
33; Def.'s App. A104.
D. Gary Parker's Farm Loans
Gary Parker is Carl Parker's older brother. Compare Def.'s App. Al50, with id. at A57.
Like his brother, Gary Parker also self-identified as an African-American farmer, id. at Al 50,
lived in Ashburn, Georgia his entire life, id. at Al61, and farmed com, peanuts, cotton, soybeans,
and wheat in that community, id. at Al53, Al61. He also raised cattle. Id. at Al53. Gary
Parker's history with the USDA is very similar to that of his brother.
In July 1985, Gary Parker received a farm loan of$155,000 from the Worth County
FmHA office. 13 Id. In February 1986, Gary Parker received a farm ownership loan and two
11
The record before the court does not reflect the interest rate or the term of the
ownership loan as rescheduled.
12
USDA regulations make an applicant ineligible for funding if sufficient outside credit
is available to meet all of the applicant's needs. Def.'s App. A13 l.
13
The record refers to Gary Parker's 1985 loan as an "ownership" loan, Def.'s App.
Al53, but its description of having been made "to assist with Mr. Parker's operating expenses of
-8-
farm operating loans. Id. at A41, A153. The ownership loan was for $155,000, and the
operating loans were for $98,370 and $66,492.16. 14 Id. at A41. According to Gary Parker, all of
his loans were supervised. Id. at A156. When crops were sold, checks were made payable to
both himself and the FmHA. Id. After taking these checks to the FmHA office, Gary Parker was
given a check for only the amount of capital he could justify needing rather than funds
independent of FmHA supervision. Id. Meanwhile, similarly situated white farmers received
unsupervised loans. Id. at A159.
Gary Parker also applied for farm loans between 1987 and 1992, but those applications
were continuously denied due to purported concerns about cash flow and ability to repay. Id. at
A153. He lost appeals of those denials. Comp!. Ex.Cat 22. In 1987, like his brother, he tried
to rent more land but was unsuccessful. Id. In later years, he was not given assistance in
completing loan applications, Def.'s App. A153, but was simply told to hire someone to help
him, id. at A154, and that he was "wasting the government's time" in applying for loans, id. at
Al56, because there was "no way [the FmHA was] going to let [him] keep borrowing [FmHA's]
money ... ," Comp!. Ex. C 22. Like his brother, Gary Parker was led to believe that FmHA
officials had already made up their minds to deny his loan applications because he was told he
did not qualify before he had even applied. Id.; Def.'s App. A156-57.
Local USDA officials referred to Gary Parker as a "problem debtor." Def. 's App. A201.
In addition, FmHA officials treated him the same way they treated his brother by refusing to
inform him of alternative loan programs for which he may have been eligible. Comp!. Ex. C at
22-23; Def.'s App. A156-57. Instead of receiving assistance, he was pressured to sell equipment
or rent his peanut quota to the son of an FmHA official. Comp!. Ex. Cat 22-23. Gary Parker
believed these actions were undertaken because FmHA officials wanted their family members to
acquire his land and livestock. Id. at 23.
Gary Parker's inability to obtain loans, as well as the delay he experienced in receiving
loans that were approved, affected his crop performance and resulted in lower yields. Def.' s
App. A159. Like his brother, Gary Parker resorted to private funding through Gold Kist
Financing to keep his farm operational. Comp!. Ex. Cat 23. Unlike his brother, however, he did
not receive loan rescheduling. Def. 's App. A41. He applied for Preservation Loan Servicing in
1991, but was denied. Id. at A200. Gary Parker was eventually forced out of the farming
business after declaring bankruptcy in January 1992. Def.'s App. A162; Comp!. Ex.Cat 23; see
also In re Parker Bros., No. 92-10055.
In February 1998, Gary Parker filed a second bankruptcy to stop the USDA from
foreclosing on his property. Comp!. Ex.Cat 23; see also In re Parker Bros., No. 98-10013.
However, it took several phone calls on his behalf by BFAA president Melvin Bishop to stop the
foreclosure sale from occurring. Comp!. Ex. C at 23.
his farm operations," id., suggests that it was actually an operating loan. Regardless, the
distinction is irrelevant to resolving the issues currently before the court.
14
The record before the court does not reflect the interest rates or terms of these loans.
-9-
E. Seeking Relief Under the Pigford I Consent Decree
Carl Parker and Gary Parker both timely submitted claim packages to the Pigford I claims
facilitator on October 12, 1999. Def.'s App. A56, A149. Each had lodged prior discrimination
complaints against the USDA-at a USDA listening session in Tallahassee, Florida and a
meeting in Albany, Georgia-that went unresolved. Id. at A63, Al 74. Each elected Track A
treatment. 15 Id. at A58, Al51. Their claim packages were supplemented on December 29, 1999,
and January 18, 2000, respectively. Id. at A55, Al48. On May 5, 2000, class counsel
discovered that the claims facilitator had incorrectly deemed the Parkers' filings as untimely. Id.
at A54, Al 4 7. As a result, Carl Parker and Gary Parker each filed late claim affidavits on
August 24, 2000, and August 21, 2000, respectively, to demonstrate why their "late" filings were
beyond their control. Id. at A52-53, A145-46. Carl Parker was assigned claim number 22105,
id. at A57, and Gary Parker was assigned claim number 22079, id. at Al50.
Carl Parker's entire claim was denied by the adjudicator on June 16, 2004, for "fail[ure]
to provide substantial evidence of discrimination" because a similarly situated white farmer was
also denied an operating loan at the same time as Carl Parker. Id. at A95-99. Gary Parker's
claim was similarly denied in its entirety by the adjudicator on July I, 2004, for "fail[ure] to
establish by substantial evidence that he was the subject of discrimination" regarding his loans,
loan restrictions, loan denials, and lack of assistance. Id. at A199-203. In denying Gary Parker's
claim, the adjudicator noted Gary Parker's "precarious" financial situation and observed that
white farmers were also subject to loan supervision. Id. at A201.
Pursuant to the consent decree, Carl Parker timely petitioned for monitor review of the
adjudicator's decision on September 11, 2004. Id. atA102; Comp!. Ex.Bat 31. See generally
Def. 's App. AI00-05. He sent a follow-up letter to the monitor on September 26, 2006. Comp!.
Ex. B at 32-34. The record before the court does not include a similar petition for monitor
review filed by Gary Parker. However, like his brother, he too sent a letter to the monitor on
September 26, 2006. Comp!. Ex. C at 22-24. Gary Parker also sent a separate letter to class
counsel that same day referencing prior communications regarding the USDA's collection
efforts. Id. at 20. The record before the court does not include any responses to either of Gary
Parker's September 26, 2006 letters.
On August 31, 2007, the monitor directed reexamination of a portion of Carl Parker's
claim. Def.'s App. A106. See generally id. at A106-38. The monitor found a "clear and
manifest e1rnr" regarding Carl Parker's claim that restrictive conditions were placed on his 1984
farm operating loan because the adjudicator relied on "mistaken assumptions of fact about [Carl
Parker's] financial situation in 1984" and an improper comparison. Id. at Al 14-18. With respect
to the latter finding, the monitor explained that pursuant to the consent decree, the issue was not
whether the FmHA's restrictions were proper under the regulations then in effect, but whether
such restrictions were less favorable to Carl Parker than a similarly situated white farmer. Id. At
15
Gary Parker's original submission did not indicate a class preference, but his claim
form was later updated to select the Track A option. Def. 's App. Al 43-44, A15 l. Carl Parker
later claimed that Gary Parker had intended to seek Class B treatment. See, e.g., Comp!. ~ 7;
Pl.'s Resp. 7.
-10-
the same time, the monitor found no "clear and manifest error" regarding Carl Parker's claims
regarding late loan funding from 1984 through 1986, restrictive loan conditions in 1985, and
denial of operating loans from 1987 through 1989. Id. at A132. Accordingly, the monitor
declined to order reexamination of those claims. Id.
On June 13, 2008, the adjudicator found in Carl Parker's favor regarding supervision of
the 1984 operating loan (the only claim before the adjudicator upon reexamination). Id. at Al 39-
42. The adjudicator explained that Carl Parker's financial situation was not so poor, compared to
a similarly situated white farmer who received an unsupervised loan in 1984, that disparate
treatment was justified. Id. at Al 41. Accordingly, Carl Parker was awarded a one-time $50,000
cash payment, debt relief for any farm operating loan debt incurred between January 1, 1984, and
December 31, 1996, and injunctive and tax relief pursuant to the consent decree. Id. at Al41-42.
The USDA finance office finished implementing Carl Parker's debt relief on December 10,
2008. Id. at A38-40; see also id. at A42 (showing Carl Parker's USDA loan balances as of June
13, 2016).
F. Subsequent Attempts to Obtain Assistance
1. Loan Servicing
Gary Parker died in December 2010, and Carl Parker became the administrator of his
estate. Comp!. Ex.Cat 14. In April 2011, Carl Parker requested primary loan servicing, but was
denied on the grounds that he had already received that service. Comp!. Ex. B at 11. On
September 13, 2011, Carl Parker received a thirty-day notice concerning the availability of loan
servicing. Id. at 11, 13-14. He timely submitted an application for loan servicing in person at
the FSA office in Sylvester, Georgia on October 12, 2011. 16 Id. at 11; Comp!. Ex. Cat 34. His
application packet was transferred to the FSA office in Dawson, Georgia the following day.
Comp!. Ex.Bat 11; Comp!. Ex.Cat 34. However, on October 31, 2011, the FSA notified Carl
Parker, via several notices, that it intended to accelerate the loans held by him both individually
and as administrator of his brother's estate and start foreclosure proceedings. Comp!. Ex. B at
11, 15-17, 19-21, 23-25; Comp!. Ex.Cat 5-7, 25-30. Carl Parker received these notices on
November 2, 2011. Comp!. Ex.Bat 22, 26. Thereafter, Carl Parker filed a request for
reconsideration of the acceleration, and requested copies of all the paperwork he had submitted.
Id. at 12.
2. USDA Office of Civil Rights
Carl Parker filed a discrimination complaint with the USDA Office of Civil Rights
("OCR") on December 28, 2011. Id. at 30; Comp!. Ex.Cat 19. The discrimination complaint
was received by the USDA Office of Adjudication on January 9, 2012, and assigned complaint
16
In 1994, agricultural credit programs of the FmHA were assigned to a new agency, the
FSA. Department of Agriculture Reorganization Act of 1994, Pub. L. No. 103-354, § 226(b)(3),
108 Stat. 3178, 3214 (codified as amended at 7 U.S.C. § 6932(b)(3)). Among its many
responsibilities, the FSA manages the farm ownership and farm operating loan programs. 7
U.S.C. § 6932(b).
-11-
number 12-5699. Comp!. Ex.Bat 8. On January 20, 2012, the USDA requested additional
information. Id. at 8-10. In response, Carl Parker provided a letter on February 26, 2012,
outlining the problems he had encountered in attempting to apply for loan servicing. Id. at 11-
12. He explained that he had been told that he did not qualify for loan servicing only to be sent
an application package shortly thereafter, that he had submitted an application for loan servicing
but the files were nowhere to be found, that the local FSA office seemed intent on foreclosing on
his property, and that there were others who had witnessed his long-time mistreatment but were
unwilling to come forward because these would-be witnesses were told by FSA personnel that
they would have a "good chance" to buy his property at a foreclosure sale. Id. The case was
accepted for processing on March 16, 2012. Id. at 29.
The OCR's acceptance of the complaint triggered a moratorium on loan acceleration and
foreclosure proceedings against the subject properties. Comp!. Ex.Cat 18; accord 7 U.S.C.
§ 198la(b)(l) (2012). An investigator was assigned to the case on or about April 20, 2012.
Comp!. Ex. B at 7. Carl Parker also filed a discrimination complaint with the OCR in his
capacity as administrator of his brother's estate sometime prior to July 11, 2013, prompting the
FSA to temporarily transfer the loan files to its office in Moultrie, Georgia. Comp!. Ex. C at 16-
17. He spoke with a representative of the OCR on November 13, 2013, regarding the complaint
he filed as administrator of his brother's estate. Comp!. Ex.Bat 29. On December 23, 2013, the
two complaints filed by Carl Parker-individually and as administrator-were joined under
complaint number 12-5699 because they were both based on the same facts and circumstances.
Id. The case was closed on June 4, 2014, with a finding of no discrimination. Comp!. Ex.Cat
11. On September 25, 2014, the moratorium on loan acceleration and foreclosure proceedings
ended, and the loan files were transferred back to the FSA office in Dawson, Georgia. Id. at 12.
3. Reconsideration of Adverse Loan Decisions
Meanwhile, on September 5, 2014, an adverse decision was rendered regarding the debts
owed by the estate of Gary Parker. 17 Id. at 8. Carl Parker asked for reconsideration of that
decision on October 3, 2014. Id. On October 7, 2014, Carl Parker asked for reconsideration of
an adverse loan decision reached in his individual case, 18 stressing that he was unable to pay the
farm loans in prior years due to reasons beyond his control. Comp!. Ex. B at 6. The two
reconsideration requests were consolidated, and a reconsideration meeting was held on October
20, 2014. Id. at 27; Comp!. Ex.Cat 10. Reconsideration was denied in both cases. Comp!. Ex.
Bat 27; Comp!. Ex.Cat 10. During the October 20, 2014 meeting, Carl Parker was given
documentation from the Code of Federal Regulations and FSA Handbook 3-FLP used to
determine his ineligibility for the assistance sought. Comp!. Ex.Bat 27; Comp!. Ex.Cat 10.
One of the reasons given for the estate's ineligibility was that it was not a legal entity. Comp!.
Ex.Cat 14. Carl Parker asked for an application to assume the estate's loans, but was told the
time frame had expired for doing so. Id. He then requested information about assuming loans,
but reported never receiving it. Id. On November 12, 2014, Carl Parker reiterated his request for
17
The record before the court does not reflect what relief had been sought.
18
The record before the court does not reflect what relief had been sought.
-12-
an application to assume his deceased brother's loans, explaining that preventing him from doing
so because of a time limit would be unfair in his situation. Id. Believing that the October 20,
2014 denial of reconsideration was erroneous, id. at 10; Comp!. Ex.Bat 27, Carl Parker
requested mediation on November 18, 2014, Comp!. Ex.Bat 28; Comp!. Ex.Cat 13. The
record before the court does not reflect the results of the November 18, 2014 mediation request.
4. USDA Office of Administrative Law Judges (February 2016)
On February 25, 2016, Carl Parker filed a complaint with the USDA Office of
Administrative Law Judges ("OALJ") alleging ongoing racial discrimination and requesting an
expedited hearing before an administrative law judge ("ALJ"), a temporary restraining order, and
a preliminary injunction. Def.'s App. A217-20. He cited Section 741 in support of his argument
that he was entitled to a "hearing on the record" before an ALJ, and noted that such a hearing
never occurred. Id. at A217-18. Carl Parker also claimed that, as a prevailing Track A claimant,
the FSA's failure to forgive his farm ownership loan and subsequent foreclosure efforts violated
the Pigford I consent decree. Id. at A2 l 9. In addition, Carl Parker argued that tennination of the
foreclosure moratorium-which was in place while his complaint was pending with the OCR-is
permissible only after a hearing before an ALJ or judicial review, and that the OCR "failed to
answer the complaints" he filed. Id. Carl Parker noted that his brother was also denied relief
under the Pigford I consent decree and that although he petitioned the monitor for reexamination,
the monitor never considered his request. Id. Carl Parker further noted that in the past, the
USDA and the Pigford I monitor had lost pertinent records. Id. Finally, Carl Parker asked that
an ALI order a complete review of the administrative record. Id. at A220.
An ALJ considered Carl Parker's complaint and explained, in a March 21, 2016 order,
that there was no jurisdiction to grant Carl Parker's request for a hearing because (1) Section 741
imposed an October 21, 2000 deadline for requesting that the USDA review previously
unresolved discrimination complaints that were originally filed before July 1, 1997, and (2) there
was no evidence that Gary Parker had ever filed a complaint with the USDA pursuant to Section
741. 19 Id. at A221-23. The ALJ therefore dismissed the petition for a hearing and forwarded the
matter to the OCR "for resolution pursuant to prevailing regulations." Id. at A223.
5. U.S. District Court Proceedings
On February 29, 2016, Carl Parker filed suit in the United States District Court for the
Middle District of Georgia ("Georgia district court") alleging (1) breach of the Pigford I consent
decree based on the USDA's reinstatement of his farm ownership loan despite his status as a
prevailing Track A claimant, failure to provide a hearing for his brother's estate, and violation of
Section 741; (2) numerous civil rights violations, including conspiracy, arising from racial
discrimination; and (3) violations of Section 14012 by virtue of the USDA's having set a March
1, 2016 foreclosure sale date. Id. at A208-16. He sought an injunction against the sale of
19
As described above, see supra Part LE, Gary Parker sought judicial relief via the
Pigford I litigation instead of filing a complaint with the USDA under Section 741. See
generally Def. 's App. A149-62 (containing the claim package Gary Parker submitted to the
Pigford I claims facilitator).
-13-
property and $8 million in damages. Id. at A215. On June 27, 2016, he filed an amended
complaint seeking a formal hearing before an ALJ, reinstatement of the foreclosure moratorium,
forgiveness of his farm ownership loan, and removal of any liens against his property. Def.' s
App. A224-30.
In a brieffiled on September 30, 2016, Carl Parker argued that he was entitled to a formal
hearing before an ALJ on his civil rights complaints under 7 C.F.R. § 15f.9 and Section 14012.
Pl.'s Brief2-5, Parker v. U.S. Dep't of Agric., No. 1:16-cv-00051 (M.D. Ga.), ECF No. 21. He
also asserted that he was improperly denied a hearing under 7 C.F .R. § 766.358, that his not
receiving preferential treatment in future loan applications was a further breach of the Pigford I
consent decree, and that the adverse denial of a loan was still within the statute of limitations. Id.
at 5-7. The Georgia district court divided Carl Parker's claims into two groups: (1) claims based
on alleged violations of the Pigford I consent decree and (2) claims based on ongoing racial
discrimination, i.e., that "the USDA chose to violate the Pigford [IJ consent decree because he is
black .... " Order 3-4, Parker v. U.S. Dep't of Agric., No. 1: l 6-cv-00051 (M.D. Ga. Oct. 6,
2016), ECF No. 23. The Georgia district court transferred the first set of claims to the DC
district court, noting that only the DC district court has jurisdiction to adjudicate alleged
violations of the Pigford I consent decree and no court has jurisdiction to "act as an appellate
court for administrative rulings related to Pigford [IJ claims." Id. at 5. It also transferred the
second set of claims to the DC district court in the interest of judicial economy. Id. at 5-7. After
the transfer, Carl Parker voluntarily dismissed his suit. Notice, Parker v. U.S. Dep't of Agric.,
No. 1:16-cv-01999 (D.D.C. Jan. 3, 2017), ECF No. 34.
6. USDA Office of Administrative Law Judges (August 2016)
The record before the court does not reflect any further efforts by Carl Parker to appeal
the March 21, 2016 dismissal of his February 25, 2016 OALJ complaint. However, Carl Parker
filed another complaint with the OALJ on August 24, 2016, requesting an expedited formal
hearing, temporary restraining order, and preliminary injunction. Def.'s Reply Attach. 1at1-5.
This new complaint was identical to the February 25, 2016 OALJ complaint, except that it was
submitted on Carl Parker's behalf by a representative, and included a reference to a decision by
the United States Court of Appeals for the District of Columbia Circuit that explained the court's
authority to enforce the Pigford I consent decree. Compare id., with Def.'s App. A217-20.
The USDA responded to the complaint on September 15, 2016. Def.'s Reply Attach. 2 at
1-3. The USDA emphasized that there was no statutory basis for a hearing before the OALJ,
noting that the time period for filing a Section 741 hearing request had expired and that the
Parkers' discrimination claims from 1981to1997 were adjudicated under the Pigford I class-
action settlement. Id. at 1-2. The complaint was dismissed with prejudice six days later because
the ALJ had "no authority to grant the relief requested" for the reasons stated in the agency's
response. In re Parker, No. 16-0153, 2016 WL 6235789, at *l (U.S.D.A. Sept. 21, 2016).
7. Current Action
Carl Parker filed the instant action on his own behalf and as administrator of the estate of
Gary Parker, proceeding prose, on February 25, 2016, Comp!. 1, the same day he filed his first
-14-
complaint with the OALJ, Def.'s App. A217. In his complaint, Carl Parker asserts claims for
breach of the Pigford I consent decree, Comp!. '1['1[ 4-8, takings without just compensation in
violation of the Fifth Amendment to the United States Constitution ("Constitution"), id. '1f 9,
violations of Section 14012, id. '1['1[ 9-10, violations of the "Pigford Remedies Act of2007," id.
'1[11, and violations of the Contract Disputes Act of 1978 ("CDA"), 41 U.S.C. §§ 7101-7109
(2012), id. '1['1[ 12-13. He seeks $8 million in damages. Id. at 6.
Carl Parker submitted a motion for partial summary judgment on March 21, 2016, and it
was filed by leave of court the following day. Order, Mar. 22, 2016. Except for the first and last
°
sentence, the motion for partial summary judgment mirrored the complaint. 2 Compare Pl. 's
Mot. for Partial Summ. J. 1-6, with Comp!. 1-6. The court stayed briefing on that motion,
explaining that the motion would not be entertained until after defendant responded to the
complaint. Order, Mar. 22, 2016.
On July 22, 2016, defendant filed a motion to dismiss the complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal
Claims ("RCFC") and, alternatively, for failure to state a claim upon which this court can grant
relief pursuant to RCFC 12(b)(6). Def.'s Mot. to Dismiss 2. Defendant argues that this court
lacks jurisdiction due to the statute of limitations. Id. Defendant also contends that (1) neither
the 2008 Farm Bill nor the "Pigford Remedies Act" confers jurisdiction over Carl Parker's
claims to this court, and (2) neither the Parkers' loans nor the Pigford I consent decree are within
the scope of the CDA. Id. Further, defendant asserts that Carl Parker has failed to state a
plausible claim for relief based on either a breach-of-contract or a takings theory. Id.
In response, Carl Parker avers that violations of the Pigford I consent decree are
reviewable, raises a fraud claim concerning Gary Parker's purported election to pursue Track A
treatment instead of Track B treatment, and cites several cases for the proposition that there is a
right to a hearing pursuant to Section 14012. Pl.'s Resp. 7. Carl Parker claims that he is "not
asking for a review of the decision of the adjudicator or the arbitrator," but rather a "review of
the monitor's decision to deny [Gary Parker's] request for review." Id. at 9. He also requests
that, in the interest of judicial economy, the court order the OALJ to hold a formal hearing and
stay proceedings in this case until such a hearing takes place. 21 Id. at 13. In its reply, defendant
emphasizes that none of the arguments Carl Parker raises establish this court's jurisdiction over
his claims, and that Carl Parker has not pied any plausible claims for relief. Def.'s Reply 1.
Defendant also observes that, instead of appealing the OALJ's dismissal of his Febrnary 25,
2016 complaint, Carl Parker filed another petition with the OALJ for a hearing. Id. at 5 n.2. See
generally Def.'s Reply Attach. l; supra Part I.F.6.
20
In addition, Carl Parker attached a timeline of events leading up to the instant action to
his motion for partial summary judgment. See Pl.'s Mot. for Partial Summ. J. Ex. A at 1-4.
21
One month prior, Carl Parker moved this court to order the OALJ to hold a formal
hearing. See generally Pis.' Mot. to Review Admin. R. The court denied the motion because
jurisdiction over the Parkers' claims is a prerequisite for it to order any sort of relief. Order,
Aug. 23, 2016.
-15-
Defendant's motion to dismiss is fully briefed. The court considers oral argument
unnecessary.
II. DISCUSSION
A. Standards of Review
1. RCFC 12(b)(l)
In determining whether subject matter jurisdiction exists, the court "must accept as true
all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in
favor of the plaintiff." Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir.
2011 ). With respect to a motion to dismiss for lack of subject matter jurisdiction pursuant to
RCFC l 2(b)(1 ), the plaintiff bears the burden of proving, by a preponderance of evidence, that
the court possesses subject matter jurisdiction. Id. The court is not limited to the pleadings in
considering subject matter jurisdiction. Banks v. United States, 741F.3d1268, 1277 (Fed. Cir.
2014); Pucciariello v. United States, 116 Fed. Cl. 390, 400 (2014). While prose pleadings are
"held to less stringent standards than formal pleadings drafted by lawyers" and are "to be
liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation
marks omitted), the "leniency afforded to a pro se litigant with respect to mere formalities does
not relieve the burden to meet jurisdictional requirements," Minehan v. United States, 75 Fed.
Cl. 249, 253 (2007). If the court finds that it lacks subject matter jurisdiction over a claim,
RCFC 12(h)(3) requires the court to dismiss that claim.
2. RCFC 12(b)(6)
A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC
12(b)(6) ifit does not provide a basis for the court to grant relief. Lindsay v. United States, 295
F.3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss ... for failure to state a claim upon
which relief can be granted is appropriate when the facts asserted by the claimant do not entitle
him to a legal remedy."). To survive an RCFC 12(b)(6) motion to dismiss, a plaintiff must
include in its complaint "enough facts to state a claim to relief that is plausible on its face"
sufficient for the defendant to have "fair notice" of the claim and the "grounds upon which it
rests." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (internal quotation marks
omitted). In other words, a plaintiff must "plead[] factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In ruling on such a motion,
the court must "accept as true all of the factual allegations contained in the complaint" and any
attachments thereto. Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56); accord
RCFC 10(c) ("A copy of a written instrument that is an exhibit to a pleading is part of the
pleading for all purposes."); Rocky Mountain Helium, LLC v. United States, 841F.3d1320,
1325 (Fed. Cir. 2016) (applying RCFC lO(c) and emphasizing that "a court 'must consider the
complaint in its entirety, ... in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice'" (quoting Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007))).
-16-
The issue at this stage oflitigation is not the sufficiency of the United States' potential
defenses or the likelihood of Carl Parker's eventual success on the merits of his claim, but
simply whether Carl Parker has alleged specific facts describing a plausible claim for relief. See
Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed. Cir. 2007) ("The
court must determine 'whether the claimant is entitled to offer evidence to support the claims,'
not whether the claimant will ultimately prevail." (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974))). As a prose litigant, Carl Parker is afforded leniency in drafting his complaint. See
Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014).
B. Subject Matter Jurisdiction
Whether the court possesses jurisdiction to decide the merits of a case is a "threshold
matter." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Subject matter
jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case."
United States v. Cotton, 535 U.S. 625, 630 (2002), guoted in Arbaugh v. Y&H Corp., 546 U.S.
500, 514 (2006). "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall)
506, 514 (1868). Therefore, it is "an inflexible matter that must be considered before proceeding
to evaluate the merits of a case." Matthews v. United States, 72 Fed. CL 274, 278 (2006); accord
K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004-05 (Fed. Cir. 2015). Either party,
or the court sua sponte, may challenge the court's subject matter jurisdiction at any time.
Arbaugh, 546 U.S. at 506.
The ability of the United States Court of Federal Claims ("Court of Federal Claims") to
entertain suits against the United States is limited. "The United States, as sovereign, is immune
from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941 ).
The waiver of immunity "may not be inferred, but must be unequivocally expressed." United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003). Further, "[w]hen waiver
legislation contains a statute of limitations, the limitations provision constitutes a condition on
the waiver of sovereign immunity." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,
461 U.S. 273, 287 (1983).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States, not sounding in tort, that are founded
upon the Constitution, a federal statute or regulation, or an express or implied contract with the
United States. 28 U.S.C. § 1491(a)(l) (2012); White Mountain, 537 U.S. at 472. However, the
Tucker Act is merely a jurisdictional statute and "does not create any substantive right
enforceable against the United States for money damages." United States v. Testan, 424 U.S.
392, 298 (1976). Instead, the substantive right must appear in another source oflaw, such as a
"money-mandating constitutional provision, statute or regulation that has been violated, or an
express or implied contract with the United States." Loveladies Harbor. Inc. v. United States, 27
F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).
In addition, to fall within the court's jurisdiction, any claim against the United States filed
in the Court of Federal Claims must be "filed within six years after such claim first accrues." 28
-17-
U.S.C. § 2501. A cause of action accrues "when all the events which fix the government's
alleged liability have occurred and the plaintiff was or should have been aware of their
existence." Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.
1988), quoted in San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir.
2011). The limitations period set forth in 28 U.S.C. § 2501 is an "absolute" limit on the ability
of the Court of Federal Claims to exercise jurisdiction and reach the merits of a claim. John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008).
c. 28 u.s.c. § 1500
The Court of Federal Claims similarly does not possess jurisdiction to hear claims that
are pending in another court. 28 U.S.C. § 1500; United States v. Tohono O'Odham Nation, 563
U.S. 307, 311 (2011); Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013); Res. Invs.,
Inc. v. United States, 114 Fed. CL 639, 647 (2014). Whether this statutory bar to jurisdiction
applies is measured at the time the complaint is filed. Brandt, 710 F.3d at 1379-80; Res. Invs.,
114 Fed. CL at 647; Vero Tech. Support, Inc. v. United States, 94 Fed. CL 784, 790 (2010).
To determine whether [28 U.S.C.] § 1500 applies, a court must
make two inquiries: (1) whether there is an earlier-filed "suit or
process" pending in another court, and, if so, (2) whether the
claims asserted in the earlier-filed case are "for or in respect to" the
same claim(s) asserted in the later-filed Court of Federal Claims
action. If the answer to either of these questions is negative, then
the Court of Federal Claims retains jurisdiction.
Brandt, 710 F.3d at 1374. Two actions are "for or in respect to the same claim ... if they are
based on substantially the same operative facts, regardless of the relief sought in each suit."
Tohono, 563 U.S. at 317.
Whether 28 U.S.C. § 1500 operates to bar this court from exercising jurisdiction in this
case was not raised by the parties, but the court has the responsibility to examine all pertinent
issues relevant to subject matter jurisdiction because "[ c]ourts have an independent obligation to
determine whether subject-matter jurisdiction exists, even when no party challenges it." Hertz
Com. v. Friend, 559 U.S. 77, 94 (2010); accord Gonzalez v. Thaler, 132 S. Ct. 641, 658 (2012)
("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua
sponte issues that the parties have disclaimed or have not presented."). In other words, a court
may examine the issue of subject-matter jurisdiction "on its own initiative" at any point in a case.
Arbaugh, 546 U.S. at 506; see also Jeun v. United States, 128 Fed. CL 203, 209-10 (2016)
(collecting cases). Although§ 1500 divests this court of jurisdiction when there is another action
pending elsewhere based on the same operative facts, it does not prevent the exercise of
jurisdiction in this case.
Carl Parker was involved in three actions in addition to the instant case: the Pigford I
class action, the federal district court suit that was transferred from the Georgia district court to
the DC district court, and the original proceedings before the OALJ. All three actions are based,
at least in part, on "substantially the same operative facts," Tohono, 563 U.S. at 317, as the
-18-
instant case. This action was filed on February 25, 2016.
First, the Pigford I case was dismissed with prejudice when the consent decree was
approved, and the subsequent appeal concluded on March 31, 2000. Pigford, 206 F.3d at 1214.
Thus, Pigford I was not pending when Carl Parker filed suit in this court. Second, Carl Parker's
federal district court suit was originally filed in the Georgia district court on February 29, 2016.
Thus, the federal district court case was filed four days after this suit was filed. Finally, the
February 2016 OALJ complaint was filed on the same day as the instant action. 22 However, the
OALJ is not a "court." See 5 U.S.C. § 551(1) (2012) (distinguishing between a federal agency
and federal courts); 28 U.S.C. § 610 (listing courts whose administrative functions are overseen
by the Administrative Office of the United States Courts); 28 U.S.C. § 1631 (allowing courts to
transfer civil actions to another court to cure jurisdictional defects, defining courts by reference
to 28 U.S.C. § 610, and including a "petition for review of administrative action" in the
definition of an appeal filed in court); see also Donovan v. Diplomat Envelope Coro., 587 F.
Supp. 1417, 1422 (E.D.N.Y. 1984) (noting that the administrative law judge was not a "court"
for collateral estoppel purposes).
Therefore, since none of the relevant cases was "pending" in another court at the time the
complaint in the instant case was filed, 28 U.S.C. § 1500 does not prevent this court from
exercising subject matter jurisdiction.
22
Under 28 U.S.C. § 1500, the Court of Federal Claims cannot exercise jurisdiction over
claims filed "simultaneously" in district court. Griffin v. United States, 590 F.3d 1291, 1293
(Fed. Cir. 2009); Taylor v. United States, 128 Fed. Cl. 635, 639-41 (2016). However, the
"language and structure" of§ 1500 suggest that, to the extent possible, courts make "a factual
determination of the order in which two claims are filed." United Keetoowah Band of Cherokee
Indians in Okla. v. United States, 86 Fed. Cl. 183, 189 (2009); accord Kaw Nation of Okla. v.
United States, 103 Fed. Cl. 613, 634 (2012) (explaining that "the statutory language of section
1500 does not allow a court to disregard the respective timing of the complaints"). "No binding
case law addresses the jurisdictional effect of the time of filing on complaints filed on the same
day in the Court of Federal Claims and federal district court." United Keetoowah Band, 86 Fed.
CL at 89. Thus, the Court of Federal Claims is "divided among two camps. The majority view
recognizes as dispositive the sequence of the two complaints' filings. The minority view ...
adopts a per se rule that a district court complaint filed the same day is pending regardless of
time of filing." Id. at 190; accord Res. Invs., 114 Fed. CL at 643 n.3. Nevertheless, when
evidence is lacking regarding which complaint was filed first on a particular day, the Court of
Federal Claims has generally held that the district court case was pending for purposes of§ 1500.
See, e.g., Coeur d'Alene Tribe v. United States, 102 Fed. CL 17, 26 (2011); Lan-Dale Co. v.
United States, 85 Fed. CL 431, 434-35 (2009). Here, Carl Parker mailed his complaints to the
Court of Federal Claims and the OALJ, and both complaints were filed on the same day.
However, because another requirement of§ 1500 was not satisfied, see infra, the order in which
the two complaints were filed is ultimately irrelevant.
-19-
D. Breach-of-Contract Claim
1. This Court Lacks Jurisdiction to Consider Carl Parker's Claim for Breach of the
Pigford I Consent Decree
When Carl Parker paitially succeeded on his Track A claim pursuant to the Pigford I
consent decree, he was awarded $50,000, tax relief, injunctive relief, and forgiveness of his
outstanding farm operating loans. However, his farm ownership loan was not forgiven. Carl
Parker strenuously asserts that the USDA's failure to forgive his farm ownership loan is a breach
of the Pigford I consent decree because he was a prevailing claimant thereunder. He also asserts
that the USDA's failure to provide Gary Parker with an administrative hearing is a breach of the
Pigford I consent decree. Defendant avers that the Court of Federal Claims lacks jurisdiction to
entertain claims concerning breach of the Pigford I consent decree because of the six-year
limitations period specified in 28 U.S.C. § 2501.
Carl Parker is co1Tect in his assertion that settlement agreements, including those
embodied in a consent decree, constitute contracts "within the meaning of the Tucker Act."
VanDesande v. United States, 673 F.3d 1342, 1351 (Fed. Cir. 2012) (internal quotation marks
omitted); accord Holmes v. United States, 657 F.3d 1303, 1312-15 (Fed. Cir. 2011) (holding that
a claim for breach of a settlement agreement that contemplates money dainages, or can fairly be
interpreted as such, is a claim within the Court of Federal Claims' jurisdiction); Pucciariello, 116
Fed. Cl. at 402 (emphasizing that "a suit seeking money dainages for the alleged breach of a
settlement agreement with the government falls within [the Court of Federal Claims']
jurisdiction"); Hall v. United States, 69 Fed. Cl. 51 (2005) ("The United States Court of Federal
Claims has jurisdiction over the breach of settlement agreements with the United States."); see
also Pigford v. Vilsack, 961 F. Supp. 2d 82, 87 (D.D.C. 2013) (construing consent decrees as
contracts for enforcement purposes). However, defendant is also correct regarding the six-year
statute of limitations. It is well-established that a cause of action accrues "when all the events
which fix the government's alleged liability have occurred and the plaintiff was or should have
been aware of their existence." Hopland Band, 855 F.2d at 1577. In a breach-of-contract case,
the "cause of action accrues when the breach occurs." Holmes, 657 F.3d at 1317 (internal
quotation marks omitted).
To the extent that the USDA's failure to forgive Carl Parker's farm ownership loan was a
breach of the Pigford I consent decree, such cause of action arose on August 31, 2007, when the
monitor granted reexamination of Carl Parker's claim regarding the restrictive conditions placed
on his 1984 farm operating loan and denied reexamination of his remaining claims. At that
point, Carl Parker was (or should have been) fully aware that he would not receive forgiveness of
his farm ownership loan, regardless of the disposition of the reexainination decision concerning
his farm operating loan. The six-year statute oflimitations imposed by 28 U.S.C. § 2501 for
Carl Parker's claims for breach of the Pigford I consent decree thus expired on August 31, 2013.
Therefore, this comt lacks jurisdiction to entertain those claims because the complaint was not
filed until February 25, 2016.
-20-
To the extent that either Gary Parker's assignment to Track A or denial of relief was a
breach of the Pigford I consent decree, such cause of action arose on July 1, 2004, when his
claim was denied by the adjudicator. 23 At that point, Gary Parker was aware that he would
receive no relief on his Track A claim. Furthermore, Carl Parker has failed to provide sufficient
evidence that Gary Parker timely petitioned the monitor for reexamination. To the extent that
Gary Parker's September 26, 2006 letters to the monitor and to class counsel constitute a petition
for reexamination, such petition was untimely. 24 The six-year limitations period imposed by 28
U.S.C. § 2501 for Gary Parker's claims for breach of the Pigford I consent decree thus expired
on July 1, 2010. Therefore, this court lacks jurisdiction to entertain those claims because the
complaint was not filed until February 25, 2016.
2. Assuming Jurisdiction, Carl Parker Fails to State a Plausible Claim for Relief
Alternatively, to the extent that jurisdiction to consider Carl Parker's claims based on
breach of the Pigford I consent decree is proper in this court, Carl Parker fails to state a plausible
claim upon which this court can grant relief. To prove a breach of contract, a plaintiff must
establish "(1) a valid contract between the parties; (2) an obligation or duty arising from that
contract; (3) a breach of that duty; and (4) damages caused by the breach." Century Exp!. New
Orleans, LLC v. United States, 110 Fed. Cl. 148, 163 (2013) (citing San Carlos Irr. & Drainage
Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989)). Once a breach of contract is
established, the burden shifts to the defendant to plead and prove affirmative defenses that
excuse performance. Shell Oil Co. v. United States, 751F.3d1282, 1297 (Fed. Cir. 2014).
Carl Parker asserts that both he and his brother participated in the Pigford I claim process.
In other words, he alleges that both he and his brother were parties to the consent decree, i.e.,
that there was a valid contract. Carl Parker also asserts that the USDA was required to forgive
all of his farm loans and to provide Gary Parker a hearing. In other words, he alleges that the
USDA was subject to a contractual duty. Further, Carl Parker contends that the USDA did not
forgive his farm ownership loan and has not provided the estate of Gary Parker a hearing. In
other words, he alleges breach of contractual duties. Finally, Carl Parker argues that the USDA
has sought to enforce the now-overdue loans through acceleration and foreclosure. In other
words, he alleges damages caused by the USDA's breach of its contractual duties.
Although Carl Parker received forgiveness of his farm operating loans, he did not prevail
on his claim concerning his farm ownership loan. Under the terms of the consent decree, debt
forgiveness was available only for loans "incurred under or affected by the program that formed
the basis of the [successful] claim." Pigford I, 185 F.R.D. at 108; accord Def.'s App. A14
(providing for loan forgiveness for debt that was "subject of the ECOA claim(s) resolved in the
23
Carl Parker states in the complaint that "Pigford Class Membership was denied" Gary
Parker. Comp!. if 7. The court construes such "denial" as a denial of relief. Carl Parker later
averred that Gary Parker was improperly given Track A treatment. Therefore, the court also
construes that alleged "denial" of Pigford I "class membership" as a denial of Track B treatment.
24
Gary Parker's deadline to petition the monitor for reexamination was October 29,
2004, 120 days after his Track A claim was denied.
-21-
class member's favor"). Farm operating loans are distinct from farm ownership loans. Comp!.
Ex. A at 2; 7 C.F.R. § 761.2 (defining terms). Compare 7 C.F.R. pt. 764 subpt. D (describing the
farm ownership loan program), with id. subpt. G (describing the farm operating loan program).
Therefore, under the facts as alleged in the complaint, the USDA met its obligation to forgive
Carl Parker's farm operating loans, and had no duty to forgive Carl Parker's farm ownership
loan. Because the USDA had no duty to forgive Carl Parker's farm ownership loan, its failure to
forgive the loan cannot constitute a breach of the Pigford I consent decree. Similarly, the USDA
had no duty to forgive Gary Parker's farm loans because he was not a successful claimant, thus
its failure to do so cannot constitute a breach of the Pigford I consent decree.
Furthermore, the USDA did not breach the Pigford I consent decree by failing to provide
Gary Parker a hearing. Like his brother, Gary Parker elected Track A treatment and received a
denial of his claim. 25 While Track B claimants were provided a "one day mini-trial," Track A
claimants were not entitled to any sort of hearing. Pigford I, 185 F.R.D. at 97 (comparing the
process, burden of proof, and relief available for Track A and Track B claimants). Therefore,
under the facts as alleged, the USDA had no duty to provide Gary Parker a hearing under the
consent decree.
3. Summary
In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on breach of
the Pigford I consent decree. To the extent that jurisdiction in this court is proper, Carl Parker
has failed to state a plausible claim upon which this court can grant relief.
E. Takings Claim
In his complaint, Carl Parker also alleges a contractual takings claim. The Fifth
Amendment to the Constitution prohibits the govermnent from taking private property for public
use "without just compensation." The Court of Federal Claims possesses jurisdiction to entertain
Fifth Amendment takings claims. Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309
(Fed. Cir. 2008) ("It is undisputed that the Takings Clause of the Fifth Amendment is a money-
mandating source [oflaw] for purposes of Tucker Act jurisdiction."). Furthermore, "contract
rights can be the subject of a takings action." Palmyra Pac. Seafoods, LLC v. United States, 561
F.3d 1361, 1365 (Fed. Cir. 2009). Therefore, the court has jurisdiction to consider contractual
takings claims.
25
In his September 26, 2006 letter to the monitor following denial of his Track A claim,
which the court construes as a petition for reexamination of his claim, see supra Part II.D .1, Gary
Parker made no mention of improper class assignment, only that he was "shocked" that the
adjudicator had determined that he did not "establish[] through substantial evidence that [he] was
discriminated against," Comp!. Ex. C at 22. Thus, to the extent that the USDA had a duty to
ensure that Gary Parker was placed in Track Bin lieu of Track A, any claim that the USDA
breached that duty would be waived.
-22-
To prevail on a takings claim, a plaintiff must "identify[] a valid property interest" under
the Fifth Amendment and show a "governmental action [that] amounted to a compensable taking
of that property interest." Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212-13
(Fed. Cir. 2005); accord Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1329
(Fed. Cir. 2012). In a contractual takings case, a plaintiff must demonstrate that the government
"altered [the plaintiffs] contractual rights in a way that affect[ed the plaintiffs] underlying
property rights" or "stepped into the shoes of a contracting party so as to appropriate that party's
contract rights .... " Palmyra Pac. Seafoods, 561 F.3d at 1369. Even government action that is
"targeted" at a particular plaintiff does not constitute a taking that necessitates compensation if
such action does not appropriate a "protectable property interest." Id. at 1370.
In this case, Carl Parker appears to allege that both his and Gary Parker's contractual
rights as Pigford I claimants and as mortgagees have been usurped by the USDA due to the
USDA's failure to forgive their farm loans. The court assumes, without deciding, that the
Parkers' contractual rights as claimants and mortgagees have been effectively taken by the
USDA. As explained above, see supra Part II.DJ, the decision not to forgive Carl Parker's farm
ownership loan was made on August 31, 2007, and the decision not to forgive Gary Parker's
farm loans was made on July 1, 2004. Since "a claim alleging a Fifth Amendment taking
accrues when the act that constitutes the taking occurs," Ingrum v. United States, 560 F.3d 1311,
1314 (Fed. Cir. 2009), both claims are well beyond the six-year limitations period set forth in 28
U.S.C. § 2501.
Moreover, even ifthe court possessed jurisdiction to consider his takings claims, Carl
Parker has failed to establish a plausible claim for relief. To prevail on a takings claim under the
Tucker Act, a plaintiff must concede the legitimacy of the government action that effected the
taking. Hearts Bluff, 669 F.3d at 1332 (citing Tabb Lakes, Ltd. v. United States, 10 F.3d 796,
802 (Fed. Cir. 1993)); Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352 (Fed. Cir. 2001)
("[I]n a takings case we assume that the underlying governmental action was lawful, and we
decide only whether the governmental action in question constituted a taking for which
compensation must be paid."); accord Reg'] Rail Reorg. Act Cases, 419 U.S. 102, 126-27 & n.16
(1974) ("[T]he Government action must be authorized. 'The taking of private property by an
officer of the United States for public use, without being authorized, expressly or by necessary
implication, to do some act of Congress, is not the act of the government,' and hence recovery is
not available in the [Court of Federal Claims]." (quoting Hooe v. United States, 218 U.S. 322,
336 (1910))). Carl Parker does not make such a concession, but rather alleges that the USDA
violated the Pigford I consent decree by failing to forgive his and Gary Parker's outstanding farm
loans. See, e.g., Davis v. United States, 123 Fed. Cl. 235, 243 (2015) (differentiating between
"an uncompensated taking and an unlawful government action," explaining that each gives rise
to a separate cause of action, and finding that the plaintiff failed to state a plausible takings claim
because he had alleged improper government conduct (internal quotation marks omitted)), aff d
per curiam, 642 F. App'x. 982 (Fed. Cir. 2016) (unpublished decision).
In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on a takings
theory. To the extent that jurisdiction in this court is proper, Carl Parker has failed to state a
plausible claim upon which this court can grant relief.
-23-
F. Statutory Claims
The court next addresses Carl Parker's statutory claims. "A statute or regulation is
money-mandating for jurisdictional purposes if it can fairly be interpreted as mandating
compensation for damages sustained as a result of the breach of the duties it imposes." Ferreiro
v. United States, 501 F.3d 1349, 1352 (Fed. Cir. 2007) (internal quotation marks omitted). Such
a determination is made pursuant to a two-part test:
First, the court determines whether any substantive law imposes
specific obligations on the Government. If that condition is met,
then the court proceeds to the second inquiry, "whether the
relevant source of substantive law can be fairly interpreted as
mandating compensation for damages sustained as a result of the
breach of the duties the governing law imposes."
Samish Indian Nation v. United States, 657 F.3d 1330, 1335 (Fed. Cir. 2011) (quoting United
States v. Navajo Nation, 556 U.S. 287, 290-91 (2009)). In other words, "to satisfy the
jurisdictional requirements of the Tucker Act, the plaintiff must point to an independent,
substantive source oflaw that mandates payment from the United States for the injury suffered."
Johnson v. United States, 105 Fed. Cl. 85, 91 (2012); accord Samish Indian Nation, 657 F.3d at
1335-36 ("The Court of Federal Claims has jurisdiction ifthe substantive law at issue is
'reasonably amenable to the reading that it mandates a right of recovery in damages.'" (quoting
White Mountain, 537 U.S. at 466)).
1. "Pigford Remedies Act of 2007" Claim
First, Carl Parker points to the "Pigford Remedies Act of2007" as an alternative means
for recovery based on the same facts and circumstances as his breach-of-contract and takings
claims. However, as defendant observes, although many of its provisions were contained in the
2008 Farm Bill, the Pigford Claims Remedy Act of2007 never became law. See S. 1989, 1 lOth
Cong. (2007); H.R. 3073, I 10th Cong. (2007); S. 515, 1 lOth Cong. (2007); H.R. 899, llOth
Cong. (2007). While the legislative history ofunenacted bills can be helpful in understanding
subsequently enacted statutes with similar language, Bailey v. United States, 52 Fed. CL 105,
112 (2002), unenacted legislation cannot serve as a money-mandating "Act of Congress"
sufficient to confer Tucker Act jurisdiction to the Court of Federal Claims, see 28 U.S.C.
§ 1491(a)(l). See also Hughs v. Shinseki, 408 F. App'x 367, 369 (Fed. Cir. 2011) (unpublished
per curiam decision) (declining to treat an unenacted bill as a law). Therefore, Carl Parker
cannot use the Pigford Claims Remedy Act of 2007 as a jurisdictional basis on which to advance
claims in this court.
2. Section 14012 Claim
Carl Parker also points to Section 14012 of the 2008 Farm Bill as an alternative means
for recovery based on the same facts and circumstances as his breach-of-contract, takings, and
Pigford Claims Remedy Act of 2007 claims. He emphasizes that Congress intended Section
14012 to be "liberally construed," Pub. L. No. 110-246, § 14012(d), 122 Stat. at 2210, to effect
-24-
its purpose of providing a "full determination on the merits for each Pigford claim," id. He also
properly observes that Section 14012 precludes acceleration or foreclosure regarding farm loans
related to a Pigford claim. Id.§ 14012(h), 122 Stat. at 2211-12. Carl Parker avers that the
USDA's efforts to collect on his unforgiven farm ownership loan, collect on his brother's loans
without a full hearing on the merits, and foreclose on property he owns both individually and as
administrator of his brother's estate are in direct violation of Section 14012.
It is well established that statutes must be read in their entirety and enforced according to
their terms if the statutory language is plain, which may become apparent only in context of the
overall statutory scheme. King v. Burwell, 135 S. Ct. 2480, 2489 (2015). By invoking Section
14012, Carl Parker fails to recognize that subsection (b) clearly specifies that any action filed
pursuant to Section 14012 must be brought in the DC district court. Pub. L. No. 110-246, §
14012(b), 122 Stat. at 2210; Pigford II, 856 F. Supp. 2d at 11; see also In re Black Farmers
Discrimination Litig., 29 F. Supp. 3d 1, 5 (D.D.C. 2014) (explaining the DC district court's
authority to oversee the Pigford II consent decree). Therefore, under the plain language of the
statute, the Court of Federal Claims is without jurisdiction to consider claims arising under
Section 14012.
Moreover, even if this court possessed jurisdiction to consider Carl Parker's Section
14012 claims, he has failed to state a plausible claim upon which this co mi can grant relief.
Section 14012-which paved the way for the Pigford II settlement in the same way that Section
741 paved the way for the Pigford I settlement, Pigford II, 856 F. Supp. 2d at 8-9, 11-12---0nly
applied to those individuals "who ha[d] not previously obtained a determination on the merits of
a Pigford claim." Id. at 11; Pub. L. No. 110-246, § 14012(b), 122 Stat. at 2210. While they
disagreed with the results, Carl Parker and Gary Parker each received a determination on the
merits of his Pigford I discrimination claim. Section 14012 is thus of no use to the Parkers. It
applies only to Pigford II claimants; it does not provide a second bite at the apple to Pigford I
claimants who were unhappy with the results.
In sum, the court lacks jurisdiction to entertain Carl Parker's claims based on the
USDA's alleged violation of Section 14012. To the extent that jurisdiction in this court is
proper, Carl Parker has failed to state a plausible claim upon which this court can grant relief.
3. CDAClaim
In addition to alleging that the USDA breached the Pigford I consent decree, Carl Parker
generally alleges a violation of the CDA. The CDA is a "money-mandating source oflaw
sufficient to confer jurisdiction in [the Court of Federal Claims] under the Tucker Act." Kellogg
Brown & Root Servs., Inc. v. United States, 115 Fed. Cl. 168, 171 (2014); accord 28 U.S.C. §
1491(a)(2) (providing jurisdiction in the Court of Federal Claims to hear disputes arising under
the CDA). The CDA, however, "applies only to express or implied government contracts for
procurement of goods or services." Rick's Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343-44 (Fed. Cir. 2008); accord 41 U.S.C. § 7102(a). In other words, nonprocurement
contracts fall outside of this court's CDAjurisdiction. Procurement encompasses "all stages of
the process of acquiring property or services." 41 U.S.C. § 111; see also Res. Conservation Grp.,
LLC v. United States, 597 F.3d 1238, 1244 (Fed. Cir. 2010) (applying the definition of
-25-
"procurement" in 41 U.S.C. § 403(2), the predecessor to 41U.S.C.§111, to the Tucker Act). It
involves the "acquisition by purchase, lease or barter, of property or services for the direct
benefit or use of the Federal Government." Wesleyan Co. v. Harvey, 454 F.3d 1375, 1378 (Fed.
Cir. 2006) (internal quotation marks omitted).
Besides the consent decree, the only contracts relevant to this case are the Parkers' farm
loans and associated mortgages. This court has previously found that, in providing a loan
commitment, the government "was neither procuring services nor receiving any direct benefit,"
even ifthe government were to receive reimbursement for "the loan, as well as the associated
interest and fees." Solaria Corp. v. United States, 123 Fed. CL 105, 121 (2015). Here, the
USDA did not procure services, nor did it receive a direct benefit in providing farm loans to Carl
and Gary Parker. Even if the USDA were to have foreclosed on the subject properties, it would
not have received a benefit or procured property because proceeds from the foreclosure sale to a
third-party buyer would simply be applied to the outstanding loan balances.
In sum, the Parkers' farm loans and associated mortgages are not procurement contracts.
Therefore, the court lacks jurisdiction to consider Carl Parker's CDA claim.
G. Discrimination and Other Claims
Finally, Carl Parker alleges that the USDA failed to respond to his complaints of ongoing
discrimination. However, to the extent that the USDA's treatment of the Parkers constitutes
ongoing discrimination in violation of civil rights statutes, harassment, conspiracy, fraud, or
breach of fiduciary duty or negligence (by virtue of the USDA's constantly losing the Parkers'
files and paperwork), those claims must be pursued in district court because they are outside the
reach of this court's limited Tucker Act jurisdiction.
First, only federal district courts possess jurisdiction to entertain claims under the
relevant civil rights statutes. Marlin v. United States, 63 Fed. CL 475, 476 (2005). The Court of
Federal Claims is not a district court. Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir.
2002); see also Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 563 (2017) (distinguishing
between the "Court of Federal Claims" and "federal district courts"). Second, claims of
harassment, conspiracy, fraud, breach of fiduciary duty, and negligence sound in tort. See
Lawrence Battelle, Inc. v. United States, 117 Fed. Cl. 579, 585 (2014) (fraud, discrimination, and
negligence); Sellers v. United States, 110 Fed. CL 62, 68 (2013) (negligence); Cox v. United
States, 105 Fed. Cl. 213, 218 (2012) (harassment, fraud, and breach of fiduciary duty); Phang v.
United States, 87 Fed. Cl. 321, 325 (2009) (fraud); Gant v. United States, 63 Fed. Cl. 311, 316
(2004) (conspiracy, fraud, and negligence). This court lacks jurisdiction to entertain claims
sounding in tort. 28 U.S.C. § 1491(a)(l); see also U.S. Marine, Inc. v. United States, 722 F.3d
1360, 1365-66 (Fed. Cir. 2013) (noting that under the Federal Tort Claims Act, 28 U.S.C. §§
1346(b)(1 ), 2671-2680, jurisdiction over tort claims against the United States lies exclusively in
federal district courts).
The only exception to that rule is for a tort claim that "stems from a breach of contract"
claim. Awad v. United States, 301F.3d1367, 1372 (Fed. Cir. 2002). In such a case, "the cause
of action is ultimately one arising in contract, and thus is properly within the exclusive
-26-
jurisdiction of the Court of Federal Claims." Id.; accord Olin Jones Sand Co. v. United States,
225 Ct. Cl. 741, 745 (1980) ("Where ... a claim is based on breach of contract it is properly
within the jurisdiction ofthis court even though it also alleges that defendant engaged in tortious
conduct in breaching the contract."). In Demodulation, Inc. v. United States, 103 Fed. Cl. 794,
813-14 (2012), this court observed that if it dismissed the counts alleging breach of contract, it
would also "necessarily" dismiss the tortious claims arising out of those purported contracts. In
other words, tortious breach-of-contract claims cannot survive if the underlying contractual
claims are dismissed. See, e.g., Nesselrode v. United States, 127 Fed. Cl. 421, 430 (2016)
(dismissing a fraud claim based on a breach of contract for lack of subject matter jurisdiction
when the plaintiff failed to state a plausible breach-of-contract claim). As explained above, there
is no breach-of-contract claim properly before this court. Therefore, there is no contractual basis
for Carl Parker's tort claims.
In sum, the court lacks jurisdiction to consider Carl Parker's civil rights and tort claims.
III. CONCLUSION
The court has considered all arguments of the parties. To the extent not discussed herein,
the court finds them unpersuasive or without merit.
The Court of Federal Claims lacks jurisdiction to consider Carl Parker's claims for
breach of the Pigford I consent decree, takings, violation of the "Pigford Remedies Act of 2007,"
violation of Section 14012, ongoing discrimination, harassment, conspiracy, fraud, breach of
fiduciary duty, and negligence. To the extent that the comts are unable to provide relief for Carl
Parker, he must seek redress from the political branches of government. See Res. Invs., 114 Fed.
Cl. at 655.
In sum, the court GRANTS defendant's motion to dismiss the complaint for lack of
subject matter jurisdiction. The court also DENIES AS MOOT defendant's motion to dismiss
the complaint for failure to state a claim upon which this court can grant relief. Further, the court
DENIES AS MOOT Carl Parker's motion for partial summary judgment.
The court has filed this ruling under seal. The parties shall confer to determine agreed-to
proposed redactions. Then, by no later than Tuesday, February 28, 2017, the parties shall file
a joint status report indicating their agreement with the proposed redactions, attaching a copy of
those pages of the court's ruling containing proposed redactions, with all proposed
redactions clearly indicated.
No costs. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
| {
"pile_set_name": "FreeLaw"
} |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0717n.06
No. 10-4625
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
HERMAN ORDONEZ, MAURA ORDONEZ, )
) Oct 18, 2011
Petitioners, ) LEONARD GREEN, Clerk
)
v. )
)
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
)
)
)
)
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Herman Ordonez and his wife, Maura, both natives and
citizens of Guatemala, petition for review of an order of the Board of Immigration Appeals denying
their applications for asylum and cancellation of removal.
Herman entered the United States without inspection in 1991 and applied for asylum shortly
thereafter. Maura entered the United States without inspection in 1996. After the two married,
Herman amended his asylum application to include Maura as a derivative beneficiary. Both filed
applications for cancellation of removal. Herman testified to the following facts during his
deportation hearing.
No. 10-4625
Ordonez v. Holder
In the mid-1980s—during the civil war between the Guatemalan military and insurgent
groups—Herman had several encounters with armed groups of military men. When he was about
16, one such group roused him and his family during the night and brought the family to the center
of town, where they were detained—along with all other town residents—for about nine hours. They
were not harmed during the detention.
When Herman was 17, a group of soldiers interrogated him about his connection to the
guerillas. When he failed to provide any information, the men punched and kicked him. Later that
year, Herman was interrogated for a second time. Again, he failed to provide information about the
guerillas, so the men beat him and threatened to kill him.
Herman also testified that he was detained, accused of being a guerilla, and questioned by
the military or ex-military personnel on several occasions. He was released quickly each time
because his uncle was a military commissioner.
Following these encounters, Herman moved to Guatemala City, where he lived and worked
for approximately three years. He was not harassed or harmed by the military during this time
period.
Herman testified that he fears returning to Guatemala because military men accused him of
being a guerilla and threatened to kill him when he was a teenager. He stated that he also fears
general political violence, human rights abuses, crime, and violence against women and children if
he returns to Guatemala with his family. Both Herman and Maura testified that they would not earn
much money in Guatemala and that their two American-citizen daughters would have a hard time
adapting to life there.
-2-
No. 10-4625
Ordonez v. Holder
The immigration judge denied Herman’s asylum application, reasoning that Herman had not
been targeted on account of his political opinion or social group and that, in any event, the harm he
had experienced in Guatemala did not rise to the level of persecution. The IJ also determined that
Herman did not have a reasonable fear of future persecution because his past harm occurred during
the Guatemalan civil war, which ended in 1996. Finally, the IJ denied Herman and Maura’s
applications for cancellation of removal because they did not establish that their daughters would
experience exceptional hardship upon removal.
On appeal, the Board found that Herman did establish that he had been harmed on account
of an imputed political opinion. The Board affirmed the denial of all forms of relief following the
remainder of the IJ’s reasoning.
Where, as here, the Board issues its own opinion, we review that opinion as the final agency
determination; but we also review the IJ’s decision to the extent the Board adopted its reasoning.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review questions of law de novo and
factual findings for substantial evidence, reversing only if the evidence presented compels a contrary
conclusion. Id.
Herman argues that the IJ and the Board erred in denying his asylum application. To prevail
on his asylum claim, Herman must establish that he is unable or unwilling to return to Guatemala
because he either suffered past persecution or has a well-founded fear of future persecution on the
basis of his imputed political opinion as a guerilla supporter. See 8 U.S.C. § 1158(b)(1)(B); Pilica
v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004). Persecution requires “more than a few isolated
incidents of verbal harassment or intimidation, unaccompanied by physical punishment, infliction
-3-
No. 10-4625
Ordonez v. Holder
of harm, or significant deprivation of liberty.” Gilaj v. Gonzales, 408 F.3d 275, 284 (6th Cir. 2005)
(quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)). It does not include all conduct
that “our society regards as unfair, unjust, or even unlawful or unconstitutional.” Mohammed v.
Keisler, 507 F.3d 369, 371-72 (6th Cir. 2007). The “critical factor” in deciding whether persecution
occurred is whether “the overall context in which the harmful conduct occurred” supports a finding
that Herman was targeted for abuse based on his imputed political opinion. See Gilaj, 408 F.3d at
285.
Herman asserts that the Board erred in finding that his two beatings and multiple detentions
did not rise to the level of past persecution. But Herman’s detentions were generally short and
uneventful because of his uncle’s military employment. His longest detention—during which he was
held at the center of town for nine hours—does not appear have been based on any imputed political
beliefs; instead, every resident of town was detained at the same time for unknown reasons, and
Herman was neither harmed nor singled out during the event. See id. (“[T]he applicant must
establish that he or she was specifically targeted by the government for abuse based on a statutorily
protected ground and was not merely a victim of indiscriminate mistreatment”). Moreover, Herman
did not present evidence that his beatings caused serious injury or required medical treatment. Under
these circumstances, the evidence does not compel a finding that Herman was persecuted on account
of a protected ground. See id. at 284; Gjokic v. Ashcroft, 104 F. App’x 501, 505-06 (6th Cir. 2004).
Next, Herman argues that the Board erred in finding that he had not established a well-
founded fear of future persecution. Where, as here, an asylum applicant cannot establish past
persecution, he must demonstrate a genuine, subjective fear of future persecution that is objectively
-4-
No. 10-4625
Ordonez v. Holder
reasonable. Pilica, 388 F.3d at 950; 8 C.F.R. § 1208.13(b)(2). Herman testified that he feared future
persecution based on the death threat he received in the mid-1980s. But that threat stemmed from
a civil war that has been over for fifteen years. Moreover, Herman’s family members who received
similar threats have continued to live in Guatemala without suffering persecution by the military.
And Herman lived in Guatemala City for three years after the events in question without incident.
Thus, any fear of future persecution on the basis of threats made during the civil war is not
objectively reasonable.
Nor has Herman established a pattern or practice of persecution of similarly situated
individuals in Guatemala on account of a pro-guerilla political opinion. See 8 C.F.R.
§ 1208.13(b)(2)(iii). He testified that he fears human-rights abuses and other crime; but the evidence
does not establish that such harm specifically affects people who support—or are believed to
support—the guerilla movement. Instead, the record indicates the presence of crime, political
violence, and violence against women in a more general sense. The fear of crime and unsafe
conditions—untethered to a protected ground—is “not relevant to . . . fear of future political
persecution.” See Koliada v. INS, 259 F.3d 482, 488 (6th Cir. 2001). The record thus does not
compel us to reverse the Board’s finding that Herman did not establish a well-founded fear of future
persecution.
Finally, Herman and Maura do not clearly challenge the Board’s denial of cancellation of
removal before this court. They have thus waived any argument with respect to that denial. See Bi
Feng Liu v. Holder, 560 F.3d 485, 489 n.4 (6th Cir. 2009).
The petition for review is denied.
-5-
| {
"pile_set_name": "FreeLaw"
} |
Cohen v Broad Green Pictures LLC (2018 NY Slip Op 02757)
Cohen v Broad Green Pictures LLC
2018 NY Slip Op 02757
Decided on April 24, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 24, 2018
Sweeny, J.P., Richter, Webber, Moulton, JJ.
6363 155458/16
[*1]Randy Cohen, Plaintiff-Respondent,
vBroad Green Pictures LLC, et al., Defendants-Appellants.
Davis Wright Tremaine LLP, New York (Katherine M. Bolger of counsel), for appellants.
Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), and Giskan Solotaroff, New York (David Feige of counsel), for respondent.
Order, Supreme Court, New York County (Lucy Billings, J.), entered October 29, 2017, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff Randy Cohen is the former husband of Katha Pollitt, a New York writer and author. Ms. Pollitt published a non-fiction essay, titled "Learning to Drive," in the July 22, 2002 issue of The New Yorker Magazine (the article). The article wove together Ms. Pollitt's story of learning to drive, at the age of 52, with the demise of her relationship with a man identified only as her lover. Ms. Pollitt described her lover, inter alia, as "a dedicated philanderer," and "a womanizer, a liar, a cheat, a manipulator, a maniac, a psychopath. In contrast, Ms. Pollitt described her ex-husband as someone with whom she "g[o]t on very well," and "an excellent father."
In 2015, defendants Broad Green Pictures LLC and Learning to Drive Movie LLC produced and distributed a motion picture, titled "Learning to Drive," which was based upon the article, but modified the story. The trailer for the movie portrays a middle-aged woman Wendy Shields, identified as a book critic, learning to drive in Manhattan, while discussing her personal relationships. The trailer depicts or makes references to Wendy's ex-husband, Ted, five times. This libel action arises from two allegedly defamatory statements made about "Ted," in a trailer, describing him as an adulterer and philanderer.
Plaintiff sufficiently pleads that defamatory statements made about Wendy's ex-husband, in the trailer, are "of and concerning" him (see Three Amigos SJL Rest., Inc. v CBS News Inc., 28 NY3d 82, 86 [2016]; Geisler v Petrocelli, 616 F2d 636 639-640 [2d Cir 1980]). The trailer, which proclaims itself to be "Based on a True Story," is based upon, and shares a title with the article, linking the main character, Wendy, to Ms. Pollitt, and by extension, Wendy's ex-husband Ted to plaintiff. Wendy and Pollitt are middle-aged, female writers learning to drive in Manhattan, who formerly relied on an ex-husband to drive them and have a daughter. As relates to the story, plaintiff's salient characteristic is that he is the only ex-husband of the article's author, which distinctive trait links him indelibly to Ted, the only former spouse depicted in the trailer (see Greene v Paramount Pictures Corp., 138 F Supp3d 226 [ED NY 2015]).
At this early stage of the litigation, defendants failed to establish that plaintiff was a public figure or that this was a matter of public concern, to which the "actual malice" standard applies (see New York Times Co. v Sullivan, 376 US 254, 279-280 [1964]; Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 354 [2009]), or that the subject matter of the trailer is within the sphere of legitimate public concern (see Huggins v Moore, 94 NY2d 296, 301 [1999]; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]; Krauss v Globe Intl., 251 [*2]AD2d 191, 193—194 [1st Dept 1998]).
We have considered appellants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 24, 2018
CLERK
| {
"pile_set_name": "FreeLaw"
} |
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 16 2013, 7:00 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN T. MCNAMARA GREGORY F. ZOELLER
Law Office of Kevin T. McNamara, LLC Attorney General of Indiana
Saint John, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHRISTOPHER McCASTER, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1212-CR-644
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Cause No. 79C01-1109-FA-18
July 16, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Christopher McCaster was convicted of Class A felony conspiracy to commit
dealing in cocaine or a narcotic drug and given a habitual-offender sentence
enhancement. McCaster contends that his conviction was not eligible for a habitual-
offender sentence enhancement because it did not fit the statutory requirements of
Indiana Code section 35-50-2-8. Finding that McCaster’s conspiracy conviction did
make him eligible for a habitual-offender sentence enhancement, we affirm.
Facts and Procedural History
In September 2011, McCaster lived with Nina Ricketts in the Clarion Inn and
Suites in Lafayette, Indiana, and would also drive Ricketts’ car. On September 13, 2011,
McCaster sold $100 worth of heroin to an undercover police officer, had additional bags
of heroin in his possession, and fronted the officer $75 worth of cocaine. The undercover
officer made a second buy from McCaster the next day, and the day after that, he
purchased $800 worth of cocaine and $200 worth of heroin from McCaster. At each buy,
the officer saw Ricketts’ car.
On September 16, McCaster and Ricketts drove to Chicago in Ricketts’ car to buy
drugs and were pulled over by the Lafayette Police for a traffic stop. There was an
“overwhelming” odor of marijuana coming from the car, Tr. p. 196, and the police found
a bag of marijuana in Ricketts’ pocket. A K-9 unit alerted to the presence of drugs in
both the car and the hotel room at the Clarion Inn and Suites, so the police obtained
search warrants for both locations. In the car, the police recovered ecstasy pills and
multiple bags of cocaine, heroin, and marijuana. In the hotel room, the police recovered
2
additional drugs, an over-the-counter medication that is often used as a cutting agent with
heroin, and a bag with white powder residue in a trash can.
The State charged McCaster with eighteen counts: four counts of Class A felony
dealing a narcotic drug, three counts of Class A felony dealing in cocaine, Class A felony
possession of a schedule I controlled substance, Class A felony possession of cocaine,
Class A felony conspiracy to commit dealing cocaine or a narcotic drug, three counts of
Class B felony possession of a narcotic drug, Class B felony possession of cocaine, Class
B felony dealing in a schedule I controlled substance, Class C felony possession of
cocaine, Class C felony possession of a narcotic drug, and Class A misdemeanor
possession of marijuana. The State also alleged that McCaster was a habitual offender
and a habitual substance offender.
A jury trial was held, and McCaster was found guilty on all counts except Class B
felony dealing in a schedule I controlled substance. The State then presented evidence
that McCaster had previous unrelated convictions for unlawful possession of a stolen car,
unlawful possession of a weapon, and aggravated battery, as well as previous unrelated
convictions for possession of cocaine, possession of a controlled substance, and
possession of marijuana. The trial court found that McCaster was both a habitual
offender and a habitual substance offender.
At the sentencing hearing, the trial court merged all of McCaster’s convictions
into the Class A felony conspiracy to commit dealing cocaine or a narcotic drug. The
trial court sentenced McCaster to forty years, enhanced by thirty years for the habitual-
offender adjudication.
3
McCaster now appeals.
Discussion and Decision
McCaster contends that his Class A felony conspiracy to commit dealing cocaine
or a narcotic drug conviction is not eligible for a habitual-offender sentence
enhancement. He argues that it does not fit the appropriate qualification under Indiana
Code section 35-50-2-8. We disagree.
Indiana Code section 35-50-2-8 concerns the habitual-offender sentence
enhancement and provides in relevant part:
(b) The State may not seek to have a person sentenced as a habitual
offender for a felony offense under this section if:
* * * * *
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 or IC 35-48-4.
(B) The offense is not listed in section 2(b)(4) of this chapter.
(C) The total number of unrelated convictions that the person has
for:
(i) dealing in or selling a legend drug under IC 16-42-19-27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC 35-48
4-3); and
(v) dealing in a schedule V controlled substance (IC 35-48-4
4);
does not exceed one (1).
Ind. Code § 35-50-2-8(b)(3) (emphasis added). If all three subsections of (b)(3) apply,
then the State cannot seek a habitual-offender sentencing enhancement. In this case, it is
not disputed that subsection B applies because the offense is not one of the minimum
non-suspendible offenses listed in Indiana Code section 35-50-2-2(b)(4). It is also
undisputed that subsection C applies since McCaster had no previous convictions for
4
dealing offenses.1 Therefore, the only issue is whether McCaster’s Class A felony
conspiracy to commit dealing cocaine or a narcotic drug conviction is considered “an
offense under IC 16-42-19 or IC 35-48-4.” I.C. § 35-50-2-8(b)(3)(A). If it is, subsection
A applies, too, and the habitual-offender sentencing enhancement cannot apply.
Our Supreme Court has previously considered whether a conspiracy charge is an
offense under Indiana Code chapter 35-48-4 for purposes of a habitual-offender sentence
enhancement in Owens v. State, 929 N.E.2d 754 (Ind. 2010). In expressly holding that
conspiracy to deal is not the same as dealing for purposes of a habitual-offender sentence
enhancement, the Court noted that “the conspiracy to commit a felony is a distinct
offense from the contemplated felony.” Id. at 756 (citing Lane v. State, 288 N.E.2d 258,
260 (Ind. 1972)). This is because a conspiracy to commit a crime “is complete upon the
agreement and the performance of an overt act in furtherance of the agreement,” id. at
757 (internal citation omitted), and that overt act does not have to rise to the level of
committing or attempting to commit the felony. Id. Since we are to strictly construe
penal laws, our Supreme Court held that it “[could not] equate conspiracy to deal with the
dealing offenses found in Subsection 8(b)(3)(C).” Id.
McCaster argues, however, that in Owens, the issue was whether a conspiracy to
deal charge qualified as a conviction for a dealing charge under subsection C, and the
issue in the present case involves subsection A. McCaster contends that our Supreme
1
McCaster has previous unrelated felony convictions in Illinois for aggravated robbery, unlawful
possession of a weapon, unlawful possession of a stolen motor vehicle, unlawful possession of cannabis,
and unlawful possession of controlled substance, as well as a felony conviction in Indiana for possession
of cocaine. Appellant’s App. p. 34-37.
5
Court’s holding should be limited to subsection C only, making it inapplicable to this
case. We cannot agree.
In Owens, our Supreme Court explicitly held that “a conviction for conspiracy to
deal is not the same as a conviction for dealing for purposes of the general habitual
offender enhancement statute found in I.C. 35-50-2-8.” Id. at 757 (emphasis added). The
Court made it clear that its holding was relevant to the entire statute and not just one
particular subsection. Additionally, it is telling that the Indiana Code chapters referenced
in subsection C are the same as those that are referenced in subsection A of the statute.
Therefore, any holding by our Supreme Court that applied to the offenses in subsection C
would logically also apply to the offenses in subsection A, as “[w]e presume the
legislature intended for the statutory language to be applied in a logical manner . . . .”
Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007).
Under Owens, McCaster did not meet all three parts of Indiana Code section 35-
50-2-8(b)(3). His conviction was therefore eligible for the habitual-offender sentence
enhancement, so we affirm his sentence.
Affirmed.
KIRSCH, J., and PYLE, J., concur.
6
| {
"pile_set_name": "FreeLaw"
} |
541 U.S. 1031
HENDERSONv.UNITED STATES.
No. 03-8634.
Supreme Court of United States.
May 3, 2004.
1
C. A. 5th Cir. Certiorari denied. Reported below: 83 Fed. Appx. 677.
| {
"pile_set_name": "FreeLaw"
} |
261 N.J. Super. 35 (1992)
617 A.2d 681
DONNA G. BARY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF LEWIS V. BARY, SR., DECEASED, PLAINTIFF,
v.
MACK TRUCKS, INC., DEFENDANT.
Superior Court of New Jersey, Law Division Somerset County.
October 14, 1992.
*37 Michael D. Schottland for plaintiff (Schottland, Vernon, Aaron, Plaza and Costanzo, attorneys).
William J. Salmond for defendant (Donington, Karcher, Leroe, Salmond, Luongo, Ronan and Connell, attorneys).
OPINION
ARNOLD, P.J.Cv.
In this wrongful death action and survival action, the plaintiff contends that the substantive law of the Commonwealth of Pennsylvania governs the resolution of two issues even though plaintiff's decedent was domiciled in and resided in New Jersey. Because New Jersey has no governmental interest related to that contact in having New Jersey law apply, and all other *38 contacts are with Pennsylvania, this court holds that Pennsylvania substantive law applies as to both issues. This opinion is intended to supplement this courts earlier oral opinion. R. 2:5-6(c).
The relevant facts are as follows. The decedent, Lewis V. Bary, Sr., was domiciled and resided in Williamstown, New Jersey. He was employed for ten years as a tractor-trailer driver by the Overnight Transport Company and had always worked out of its terminal in Bensalem, Pennsylvania. He commuted, in his own vehicle, from his home to the terminal and back. Mr. Bary had a regular route which he drove several times a week. It took him from the Bensalem terminal to a terminal in Danville, Virginia and back to Bensalem. This route did not include any travel in New Jersey.
On September 10, 1988, Mr. Bary was killed while driving from Danville, Virginia to Bensalem, Pennsylvania. The accident happened on Interstate Route 95 in the City of Philadelphia, Pennsylvania, where Interstate 95 is an elevated highway. Mr. Bary was driving in the center lane of five northbound lanes when the truck-tractor suddenly veered sharply to the right, crossed two lanes, and struck and partially climbed the guardrail. The tractor hit the guardrail at almost a right angle and was virtually destroyed. Mr. Bary was propelled from the cab of the truck-tractor to the street below. He sustained fatal injuries and died about an hour later. The Philadelphia police officer who investigated the accident found the driver's seat belt beneath the seat cushion in the truck-tractor, which is evidence that Mr. Bary may not have been wearing the seat belt at the time of the accident.
In this action, the executrix of Mr. Bary's estate alleges that the proximate cause of the accident and Mr. Bary's injuries and death was a design defect and/or manufacturing defect in the steering system of the truck-tractor that Mr. Bary was driving. That truck-trailer was manufactured by the defendant, Mack Trucks, Inc. (Mack) at the Mack Macungie Assembly Facility in *39 Macungie, Pennsylvania. Mack has its World Corporate Headquarters in Allentown, Pennsylvania.
Mr. Bary's wife is receiving workers compensation benefits pursuant to Pennsylvania law from the Liberty Mutual Insurance Company. The payments are made through the offices of the Liberty Mutual Insurance Company in Bluebell, Pennsylvania.
There are two areas of possible conflict between the laws of New Jersey and Pennsylvania. They are whether evidence that Mr. Bary was not wearing a seat belt is admissible on:
1. The issue of damages, and
2. The issue of proximate cause, i.e. whether the sole proximate cause of his injuries and death was the failure to wear the seat belt.
EVIDENCE OF NON-USE OF SEAT BELT
On November 23, 1987, Pennsylvania enacted the Occupant Protection Act, 75 Pa. Cons. Stat. § 4581 (1990). Pursuant to subsection (a)(2) of that statute, the driver and front seat occupant of a passenger car and certain other types of motor vehicles equipped with a seat belt are required to use the belt. However, the statute further provides under subsection (e) that:
In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this subchapter; nor shall failure to use a ... safety seat belt system be considered as contributory negligence nor shall failure to use such a system be admissible as evidence in the trial of any civil action ..." [emphasis added] 75 Pa. Cons. Stat. § 4581(e) (1990).
Plaintiff argues that subsection (e) broadly prohibits the introduction of any evidence of non-use of a seat belt. However, defendant points out that subsection (a)(2) which requires the use of seat belts does not apply to Class VIII trucks, that the Mack truck-tractor driven by Mr. Bary was such a truck, and that an Appellate Court in Pennsylvania has ruled that as to an accident which occurred prior to the enactment *40 of the statute, the defense was available. Stouffer v. Com., Dept. of Transp., 127 Pa.Cmwlth. 610, 562 A.2d 922 (1989). While no court in Pennsylvania has construed the meaning of the failure to include Class VIII trucks under subsection (a)(2), this court holds that it means that the statute does not impose a duty on the driver of such a truck to wear a seat belt and that the Pennsylvania Legislature did not intend, as defendant argues, that the prohibition contained in subsection (e) would be inapplicable to litigation involving drivers of Class VIII trucks. This holding is militated by the extraordinary result reached if this court accepted the defendant's argument that the driver of a Class VIII truck has no statutory duty to wear a seat belt, but if he doesn't, evidence of non-use may be introduced at trial. Furthermore, a court must defer to the legislature on such an issue. Kolbeck v. General Motors Corp., 745 F. Supp. 288, 295 (E.D.Pa. 1990); Waterson v. General Motors Corp., 111 N.J. 238, 261-262, 544 A.2d 357 (1988); Stouffer v. Commonwealth of Pennsylvania, Department of Transportation, 127 Pa.Cmwlth. 610, 562 A.2d 922, 925 (1989). Subsection (e) of the Pennsylvania Statute was omitted from the New Jersey Statute. Waterson, supra, 111 N.J. at 261, 544 A.2d 357. The New Jersey legislature left it to the courts to decide the seat belt issue. Waterson, supra, 111 N.J. at 259, 544 A.2d 357. In Pennsylvania, however, the legislature decided the issue by enacting the exclusionary rule contained in subsection (e). Thus, this court holds that under Pennsylvania law, evidence of non-use of a seat belt is not admissible on any issue.
It is not clear whether the seat belt defense is available under New Jersey law in the circumstances of this case. Although the seat belt statute, N.J.S.A. 39:3-76.2a et seq., applies only to automobiles, in a product liability action involving an accident which occurred before the statute was enacted, the Appellate Division held that evidence that the driver of an automobile was not wearing a seat belt at the time of an accident was admissible as bearing on the issue of risk utility analysis. Siren v. *41 Behan, 224 N.J. Super. 130, 539 A.2d 1244 (App.Div.), certif. granted and matter summarily remanded to the Appellate Division for reconsideration 113 N.J. 323, 550 A.2d 442 (1988). Furthermore, New Jersey has a very significant public policy promoting the use of seat belts which would militate toward admitting evidence that Mr. Bary was not wearing a seat belt on the issue of the extent or severity of injuries, Waterson v. General Motors Corp., supra, 111 N.J. at 270, 544 A.2d 357, even though he had no statutory duty to wear the belt at the time of the accident.
Accordingly, it is this court's opinion that under New Jersey law, evidence of Mr. Bary's alleged failure to wear a seat belt would be admissible on the issues of:
1. Whether non-use increased the extent and severity of his injuries and his death; and
2. Whether non-use was the sole proximate cause of his injuries and death. Johansen v. Makita USA Inc., 128 N.J. 86, 607 A.2d 637 (1992); Fabian v. Minster Mach. Co., 258 N.J. Super. 261, 609 A.2d 487 (App.Div. 1992).
Therefore, this court holds that there is a conflict between the law of Pennsylvania and that of New Jersey as to whether evidence regarding Mr. Bary's alleged failure to wear a seat belt is admissible.[1]
*42 CONFLICT OF LAWS
In tort cases, New Jersey has rejected the rule for determining choice of law based on the place where the wrong occurred, sometimes called the lex loci delicti rule, and has adopted the more flexible "governmental interest" analysis in choice-of-law decisions. See Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970). The determinative law is that of the state with the greatest interest in governing the particular issue. Veazey v. Doremus, 103 N.J. 244, 248, 510 A.2d 1187 (1986). A two step analysis is required in resolving conflict questions. Ibid. The first step is to determine whether a conflict exists between the law of the interested states. Ibid. Here, such a conflict exists with respect to the admissibility of evidence of non-use of the seat belt. The second step is to identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and to the parties. Ibid. If a state's contacts are not related to the policies underlying its law, then the state does not possess an interest in having its law apply. Ibid.
Here, the only contact with New Jersey is that plaintiff's decedent was domiciled and resided in New Jersey which has an interest in protecting the compensation rights of its domiciliary residents. See Pine v. Eli Lilly & Co., 201 N.J. Super. 186, 492 A.2d 1079 (App.Div. 1985); Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 651, 475 A.2d 648 (App.Div. 1984). However, application of New Jersey law permitting the introduction of evidence of non-use of a seat belt can only serve to reduce the monetary award pursuant to Waterson, supra, or preclude any award if the defendant is successful on the issue of proximate cause. Thus, under the facts in this case, application of New Jersey law could adversely affect the compensation rights of its domiciliary residents and this court is unable to discern any governmental interest that New Jersey could possibly have in having its law so apply. Furthermore, the contact *43 with New Jersey is attenuated in that Mr. Bary's route began and ended in Pennsylvania and never extended into New Jersey. Restatement (Second) of Conflict of Laws § 145 comment subsection (2). See also O'Connor v. Busch Gardens, 255 N.J. Super. 545, 605 A.2d 773 (App.Div. 1992). And, all the other contacts are with Pennsylvania. Accordingly, this court holds that Pennsylvania law applies and no evidence as to Mr. Bary's alleged failure to use the seat belt will be admitted at trial.
NOTES
[1] The defendant also argued that Mr. Bary had a duty to wear the seat belt pursuant to 49 C.F.R. § 392.16 and that the Pennsylvania Occupant Protection Act was preempted by that regulation. C.F.R. § 392.16 provides, "[a] motor vehicle which has a seat belt assembly installed at the driver's seat shall not be driven unless the driver has properly restrained himself with the seat belt assembly." This court held that federal preemption had not occurred. There is no explicit statutory language evidencing congressional intent to preempt state law. Further, there is no indication that Congress intended to occupy the entire field to the exclusion of state law. Finally, the Pennsylvania Occupant Protection Act does not prohibit the wearing of seat belts by the drivers of Class VIII truck so it does not actually conflict with state law. See Buzzard v. Roadrunner Trucking Inc., 966 F.2d 777 (3rd Cir.1992); Jordan v. Paccar, Inc., 792 F. Supp. 545 (N.D.Ohio 1992).
| {
"pile_set_name": "FreeLaw"
} |
229 A.2d 332 (1967)
Rachel A. McKENNA
v.
PEDDLE LAND DEVELOPMENTS.
Supreme Judicial Court of Maine.
May 11, 1967.
*333 Richard B. Sanborn, Augusta, for plaintiff.
Robert Martin, Augusta, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, RUDMAN and DUFRESNE, JJ.
TAPLEY, Justice.
On appeal. The action was heard by a single Justice and it is from an appeal from his decision that it is before us. The plaintiff, Rachel A. McKenna, was the owner of certain real estate located in Hallowell, Maine, comprised of a substantial acreage of undeveloped land. The defendant, Peddle Land Developments, is a corporation engaged, among other purposes, in owning, improving and developing real estate. On September 12, 1964 the plaintiff deeded the undeveloped property to the defendant corporation. On the same date the parties executed a written agreement concerning the property. The defendant corporation on October 28, 1964 executed a mortgage to the plaintiff with the real estate as security, securing to the plaintiff the sum of ten thousand dollars ($10,000.00), payable in accordance with the terms of a contract between the parties bearing even date with that of the deed.
The plaintiff in her complaint alleges (1) that the defendant, by false and misleading information upon which she relied, induced her to sign the deed and the agreement; (2) that the defendant purported to act as a real estate broker for the plaintiff without having been licensed as a real estate broker; and (3) that the agreement and the entire transaction is illegal, void and invalid as the defendant was in violation of 32 M.R.S.A., Chap. 13, being the so-called Blue-Sky Law.
Plaintiff seeks declaration that agreement and deed is illegal, invalid and of no effect and further requests the court to remove the cloud upon the title to plaintiff's property. The presiding Justice found no deception or fraudulent action on the part of the defendant in the negotiations which culminated in the conveyance by the plaintiff to the defendant, the mortgage back from defendant to plaintiff, and the development plan expressed in the contract between the parties. He further found that the statutory provisions relative to real estate brokers and dealers in securities are not relevant to the instant proceedings. The "clearly erroneous" rule is applied to the findings of the Justice. (M.R.C.P., Rule 52).
The plaintiff contends that the written instruments which the plaintiff executed were the result of fraud practiced upon the plaintiff by the defendant and, therefore, these instruments evidencing contractual relationship between the parties are of no legal effect and should be declared null and void. The plaintiff has alleged fraud. Fraud is never presumed. It must be proved. Mallett v. Hall, 129 Me. 148, 150 A. 531; Wood et al. v. LeGoff, 152 Me. 19, 121 A.2d 468.
"As a general thing, a court of equity may not assume power to administer justice because of the hardship of a case or the failure of the party's remedy at law. Nor does equity relieve parties from bargains merely because they are hard, harsh, unwise, improvident, oppressive, or unprofitable, or because anticipated profits have not been derived therefrom. Thus, mere loss in a bargain, resulting not from fraud or the failure of a warranty, but from bad calculation or the want of vigilance, is not a ground for relief in equity." 27 Am.Jur.2d, Equity, Sec. 25.
The record discloses that the first contact made with the plaintiff which finally resulted in the transaction which is now before us was in 1960. Between 1960 and *334 September, 1964 when the deal was finally consummated Mr. Peddle, sole owner of the defendant corporation, and Mr. McMackin, who was instrumental in bringing Mr. Peddle and the plaintiff together, conferred and negotiated with the plaintiff many times. Sale price of the property, plans for its development and many other details and terms of proposed contractual relationship were debated and discussed. There is testimony in the record which could be accepted and believed by the presiding Justice that Mr. McMackin spent a substantial amount of time in going over with the plaintiff the form of the proposed deed, the various and sundry conditions contained in the agreement and the terms of the mortgage; that after such described procedure the documents were put in final form and executed by the plaintiff.
The testimony demonstrates that Mrs. McKenna, the plaintiff, is of competent mental capacity and an intelligent person. She is employed by the Internal Revenue Department in Augusta. It cannot be said under the circumstances as shown by the testimony that Mrs. McKenna would be easy prey for one who attempted to perpetrate a fraud upon her and thus illegally deprive her of her property rights.
There was introduced into evidence by the plaintiff an advertisement in the Industrial Edition of the Daily Kennebec Journal as of Saturday, February 27, 1965 that the Peddle Construction Corporation offered its expert services in the field of engineering and construction to the general public. The advertisement also speaks of its land development capabilities. Another plaintiff's exhibit being a publication in the April 9th, 1965 issue of the Daily Kennebec Journal contains a news story headlined, "Multi-Million Dollar Land Development for Hallowell." The body of the article concerns itself with the project located on the Rachel McKenna property describing in glowing and optimistic language the prospects of a million dollar development on the area. These newspaper publications were published for public consumption months after the execution of the documents in this case and, therefore, have no relevant bearing on the question of alleged fraud and misrepresentation.
We find no evidence of fraud or misrepresentation on the part of the defendant.
The Justice below found that the statutory provisions relative to real estate brokers and dealers in securities were not relevant to the facts in the case. Counsel for the plaintiff attacks this findings by saying that the evidence discloses a violation of both statutes and, therefore, the deed and agreement should be rescinded.
The pertinent portions of the statute involved are:
(Dealers in Securities)
"As used in this chapter the term `dealer' shall mean any individual, partnership, association or corporation engaging in the business of selling or offering for sale securities, except to, or through the medium of, or as agent or salesman of, a registered dealer; but sales made by, or in behalf of, a vendor in the ordinary course of bona fide personal investment, or change of investment, shall not constitute such vendor, or the agent of such vendor, if not otherwise engaged either permanently or temporarily in selling securities, a dealer in securities.
"The term `securities' shall include all stocks, bonds, debentures or certificates of participation, all ship shares, all documents of title and certificates of interest in any profit-sharing agreement, or in any oil, gas or mining lease, royalty, right or interest, or in the title to or any profits or earnings from land or other property situated outside of Maine, and all other forms of securities, except that it shall not be held to include commercial paper or other evidence of debt running not more than 9 months, or notes secured by mortgage of real estate in this State, or *335 the shares of loan and building associations organized under the laws of this State. The term `securities' shall include documents of title to and certificates of interest in real estate, including cemetery lots, and personal estate when the sale and purchase thereof is accompanied by or connected in any manner with any contract, agreement or conditions, other than a policy of title insurance issued by a company authorized to do a title insurance business in this State, under the terms of which the purchaser is insured, guaranteed or agreed to be protected against financial loss, or is promised financial gain." 32 M.R.S.A., Sec. 751.
(Real Estate Brokers and Salesmen)
"2. Real estate broker. A `real estate broker' is any person, firm, partnership, association or corporation who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or rents or offers for rent or lists or offers to list for sale, lease or rent, any real estate or the improvements thereon for others, as a whole or partial vocation.
* * * * * *
"This chapter shall not apply to any person, partnership, association or corporation who as owner or lessor shall perform any of such acts with reference to property owned or leased by said owner or lessor or to the regular employees thereof with respect to the property so owned or leased, where such acts are performed in the regular course of, or as an incident to the management of such property and the investment therein, * * *." 32 M.R.S.A., Sec. 4001.
Some of the purposes of the defendant corporation are:
"The purposes of said corporation are to undertake, do, engage in, transact and carry on any and all kinds of manufacturing, mechanical, mercantile, trading, contracting, commercial, building, agricultural, logging, lumbering, mining, quarrying, and real estate business, to sell, improve, manage, develop, lease, mortgage, dispose of, or otherwise turn to account or deal with all or any part of the property of the company and to develop land for commercial purposes, for residential purposes, for shopping centers and other associated developments and for other purposes.
"To acquire by purchase or otherwise, own, hold, buy, sell, convey, lease, mortgage or incumber real estate or other property, personal or mixed."
The corporation had full power and authority to purchase real estate, to mortgage it and to convey to those who desired to purchase it. Legally the corporation was the owner of the property, the fee vesting in it. The proceeds of sale were to be disposed of in accordance with the separate agreement executed between the parties.
"Generally, a `real estate broker' is one who negotiates the sale of real property and whose business is that of finding a purchaser who is willing to buy on terms fixed by owner." Vol. 36 Words and Phrases, page 277.
"This chapter (Real Estate Brokers and Salesmen) shall not apply to any person, partnership, association or corporation who as owner or lessor shall perform any of such acts with reference to property owned or leased by said owner or lessor * * * where such acts are performed in the regular course of, or as an incident to the management of such property and the investment therein * * *." Sec. 4001, supra. (emphasis supplied).
We hold that there was not a real estate brokerage relationship between the parties.
The plaintiff takes the position that the agreement of September 12, 1964, executed *336 on the same date as that of the deed, is a certificate of interest in a profit-sharing agreement, being a security within the intent of Sec. 751 and, therefore, there was a violation of the section because the defendant was not licensed.
In State v. Cushing, 137 Me. 112, 15 A.2d 740, the defendant was charged with selling a document of title to or certificate of interest in certain real estate, viz: burial lots. Cushing sold some burial lots for $2000. An agreement as a part of the sale provided, "Lots to be resold within thirty months at not less than $125.00 Per unit of four Graves." Upon a resale the purchasers of the lots would receive $4000., being 100% on their investment. The court held the indictment charged a crime, as under the circumstances the agreement to resell the lots for twice the amount paid, was a document of title to or a certificate of interest in real estate, the sale of which is prohibited by statute unless the dealer is licensed. The following pertinent language appears on pages 115, 116, 15 A.2d on pages 742, 743:
"It has been said that such legislation is called `Blue Sky Laws' because it tends to `stop the sale of stock that represents nothing but blue sky nothing terrestrial or tangible' (37 C.J., page 270, footnote 39); that it pertains to `speculative schemes which have no more basis than so many feet of blue sky' (Id.); and that its violators `became so barefaced that it was stated that they would sell building lots in the blue sky in fee simple.' (Id.).
"Considering the purpose of the Blue Sky Law to protect the public against fraud, deception, and imposition by purchases from unregistered dealers, it would seem it could at least in part accomplish that purpose by prohibiting the sale by an unregistered dealer of a document or certificate purporting to convey title when actually the seller has no title. The legislature no doubt realized that it would be as fraudlent to sell a worthless indenture as a worthless stock and that there was as much need to require the registration of a dealer in the one case as in the other. What the dealer sells is not the actual title but the document or certificate; another is the grantor. The gist of the charge against this respondent is that without registration as a dealer he sold this document of title to or certificate of interest in real estate, not that he, as owner of the fee, sold real estate. Title is not a material issue."
Just what did pass between the plaintiff and defendant in the nature of documents? First, there was a warranty deed conveying the real estate to Peddle Land Developments, a corporation. This deed was dated September 12, 1964. On the same date there was an agreement executed by the parties concerning the property conveyed. Later, on October 28, 1964, Peddle Land Developments executed a mortgage to the plaintiff for $10,000. The agreement contains provisions regarding the mortgage; extension of the agreement; its termination by act of either party; that Peddle Land Developments shall promote the sale or lease of the premises to the mutual benefit of both parties; that Peddle Land Developments shall determine sale price of the value of the lots to be sold with a stated minimum; that the covenants and conditions contained in the agreement are to be considered in the nature of a trust in the event Mrs. McKenna is prejudiced by legal action brought against Peddle Land Developments.
It further provides that proceeds of sales or leases be placed in a special escrow account and disbursements made in accordance with provisions of the agreement. A division of the profits shall be made equally between the parties. The language of the agreement is clear and understandable. It contains no guarantee of profits to either party.
The statute applies to "any individual, partnership, association or corporation engaging in the business of selling or offering for sale securities * * *." (emphasis *337 supplied). The requirement of registration contemplates a sale. In the case of State v. Heath et al., 199 N.C. 135, 153 S.E. 855, on page 858, 87 A.L.R. 37 involving an investment contract under a security statute the court said:
"The evils which the Legislature intended to denounce are speculative schemes which have no basis. It was deemed necessary to supervise the efforts of organizers and promoters who offer to sell stocks, bonds, and other securities in person or by agents; and to save investors from laying out their money in securities upon the promise and just expectation that the investment would return a profit without any active effort on the part of the investors."
Sec. 751 in part prohibits the sale or offering for sale without a license securities in the form of "certificates of interest in any profit-sharing agreement" or certificates of interest in real estate * * *.
In security acts, "The terms `sale,' `sell,' `offer to sell,' `offer for sale,' and `offer' are * * * broadly defined to include ingenious methods employed to obtain money from members of the public to finance ventures." Securities and Exchange Commission v. Addison, D.C., 194 F.Supp. 709, 722. The defendant in the instant case who was admittedly not licensed under Sec. 751, in order to violate the section, would have to sell to the plaintiff a certificate of interest in a profitsharing agreement or a certificate of interest in real estate accompanied by or connected with a contract, agreement or conditions under the terms of which the plaintiff was promised financial gain.
In the instant case the sale was not from Peddle Land Developments to Mrs. McKenna but from Mrs. McKenna to Peddle Land Developments. It was the transfer of title to real estate by deed. The agreement was not a certificate of interest in any profit-sharing agreement or a certificate of interest in real estate within the meaning of the terms as used in the statute. The agreement was based upon the deed setting out the respective legal responsibilities and benefits between the parties affecting the disposal of the real estate conveyed by the deed. The agreement as we have previously stated was not procured by fraud or misrepresentation. A mortgage given by Peddle Land Developments to Mrs. McKenna constituted a part of the contractual relationship between the parties. We hold that this transaction, in whole or in part, does not come within the provisions of Sec. 751.
We find no error in the findings of the single Justice.
Appeal denied.
MARDEN, J., did not sit.
| {
"pile_set_name": "FreeLaw"
} |
527 F.2d 16
UNITED STATES of America, Appellee,v.Henry ROUNDTREE, Jr., Appellant.
No. 75--1372.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 13, 1975.Decided Nov. 13, 1975.Certiorari Denied Feb. 23, 1976.See 96 S.Ct. 1133.
Jack S. Nordby, St. Paul, Minn., for appellant.
John M. Lee, U.S. Asst. Atty., Minneapolis, Minn., for appellee.
Before HEANEY, BRIGHT and HENLEY, Circuit Judges.
HEANEY, Circuit Judge.
1
Henry Roundtree, Jr., appeals from his conviction by a jury on charges of robbing Markus Kryger, a Drug Enforcement Administration Agent, of $1,000 belonging to the United States, in violation of 18 U.S.C. § 2112, and of assaulting that agent with a dangerous weapon, in violation of 18 U.S.C. § 111.1 Roundtree received three-year sentences on each count to run consecutively.
2
Roundtree challenges his convictions and the subsequent sentences on four grounds: (1) there was insufficient evidence of intent to take the property belonging to another; (2) there was no evidence that Roundtree knew or should have known that the money belonged to the United States; (3) the trial court erred in failing to give, sua sponte, a cautionary instruction on eyewitness identification testimony; and (4) because both convictions were as a result of a single behavioral incident, consecutive sentences for robbery and assault should not have been imposed. We affirm.
3
In late 1973, Agent Kryger, working under cover, arranged for a purchase of narcotics from one Montgomery Chapman. After obtaining $1,000 in government funds, Kryger met Chapman on the evening of December 27, 1973, and accompanied him to a house in Minneapolis, Minnesota, to complete the purchase.
4
As they entered the dark house, Chapman went into the living room to talk with Bernard Carter.2 Agent Kryger proceeded into the kitchen where a light was on and exchanged casual conversation with Roundtree for a period of approximately one minute. Kryger then walked into the living room where Chapman and Carter were arguing about money Chapman allegedly owed Carter.
5
Shortly thereafter, Roundtree entered the living room with a gun in his hand and pointed it at Chapman demanding money. Chapman told him that Kryger had the money. Roundtree then pointed the gun at Kryger, and Carter told him to hand the money over to Roundtree. Kryger gave Roundtree the $1,000 in government funds he had obtained to buy narcotics for Chapman. Roundtree then told Kryger to leave and he did.
6
Roundtree argues initially that his taking of government money from Agent Kryger was merely a self-help enforcement of a debt owed to Carter by Chapman and, therefore, he lacked the necessary intent to commit a robbery, that of taking the property of another. There is nothing in the record to suggest a preexisting relationship or debt between Kryger and Roundtree or the existence of a debt running from Kryger to either Chapman or Carter. The record adequately supports the conclusion that Roundtree took money from Kryger knowing he had no rightful claim to it.
7
Second, Roundtree asserts that the prosecution failed to prove that he knew the money taken from Kryger belonged to the United States and, therefore, failed to satisfy one of the substantive elements necessary for a conviction under 18 U.S.C. § 2112.
8
Our research indicates only one case under 18 U.S.C. § 2112 that raises the issue whether knowledge of the federal character of the offense is a substantive element of conviction or is merely a jurisdictional requirement. United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970). And, the Court in Hooper did not find it necessary to resolve this issue. However, a number of courts have faced this issue in relation to conviction under 18 U.S.C. § 641 which prohibits embezzling, stealing, purloining or knowingly converting government property, a sister statute to 18 U.S.C. § 2112. A majority of these courts have held that knowledge of government ownership of property is irrelevant to a § 641 prosecution. United States v. Crutchley, 502 F.2d 1195 (3rd Cir. 1974); United States v. Smith, 489 F.2d 1330 (7th Cir. 1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2407, 40 L.Ed.2d 773 (1974); United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973); United States v. Boyd, 446 F.2d 1267 (5th Cir. 1971); United States v. Howey, 427 F.2d 1017 (9th Cir. 1970). But see Findley v. United States, 362 F.2d 921 (10th Cir. 1966).
9
We also note that last term, the Supreme Court in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), held that it was not necessary for the government to show that an assailant knew his victim was a federal officer for a conviction under 18 U.S.C. § 1113 and that the federal character of the person assaulted was merely jurisdictional. Accord, United States v. Michalek, 464 F.2d 442 (8th Cir. 1972). On the basis of these analogies, we hold that it was not necessary to prove that Roundtree knew the money he had stolen belonged to the United States in order to sustain a conviction under 18 U.S.C. § 2112.
10
As a third ground for reversal, Roundtree contends that the court should have given a cautionary instruction, sua sponte, on the evaluation of eyewitness testimony. He suggests that an instruction similar to that set forth in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 558--559 (1972), should have been given by the court on its own volition notwithstanding the failure of defense counsel to request such an instruction.
11
The model instruction fashioned in Telfaire has much to commend it in those cases in which eyewitness identification is essential to support a conviction. To reverse this conviction, however, we would have to find that the failure to give an instruction embodying each of the elements of the Telfaire instruction was plain error. We can only do this if the court's omission affected the defendant's substantial rights and was 'so completely erroneous as to result in a miscarriage of justice.' Kampmeyer v. United States, 227 F.2d 313, 322 (8th Cir. 1955). See also United States v. Byrd, 494 F.2d 1275 (8th Cir. 1974).
12
We note that Agent Kryger was extensively cross-examined on his identification of Roundtree, and that defense counsel's primary emphasis in his closing argument dwelled on the alleged tenuous nature of the eyewitness testimony. We conclude, therefore, that the failure of defense counsel to ask for a cautionary instruction was not inadvertent.
13
The trial court gave the following instruction on the credibility of a witness's testimony:
14
Let me suggest to you now that you scrutinize all of the testimony you have been given and the circumstances under which each witness has testified. Consider, if you will, each witness' intelligence, his motive, his state of mind, his demeanor when he was on the witness stand. Consider the opportunity that that witness had to observe the matters about which he testifies, and whether or not he impressed you as having an accurate recollection of the things that he testified about.
15
This instruction and the considerable attention focused by counsel on the identification issue sufficiently alerted the jury of the fact that they should carefully and critically evaluate the strength of the eyewitness testimony. Absent a specific request for additional instructions by counsel, we find no plain error in the failure of the court to give the Telfaire cautionary instruction. See United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); United States v. Evans, 484 F.2d 1178 (2nd Cir. 1973); Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969).
16
Finally, Roundtree contends that his conviction for robbing Agent Kryger of government money, in violation of 18 U.S.C. § 2112, and for assaulting Kryger, a federal officer, in violation of 18 U.S.C. § 111, arose out of a single behavioral incident and, therefore, the trial judge erred in assessing consecutive sentences of three years for each conviction. He states correctly that if he had been charged and convicted of bank robbery and assault upon a bank officer under 18 U.S.C. § 2113, only one sentence would have been available. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Davis, 439 F.2d 325 (8th Cir. 1971). He argues, therefore, he should have received only a single sentence.
17
What Roundtree ignores is the fact that the bank robbery statute,18 U.S.C. § 2113, is a comprehensive statute containing special provisions for increased punishment for aggravated offenses. It is intended to cover most of the aggressions that may arise from a bank robbery and provides additional penalties within a single conviction for aggravated offenses. See United States v. Faleafine, 492 F.2d 18 (9th Cir. 1974) (en banc).
18
Roundtree was convicted of two offenses which are separate and distinct, both of which require proof of facts that the other does not. 18 U.S.C. § 111 is designed to protect federal law enforcement officers while performing federal functions, see United States v. Feola, supra, 420 U.S. at 678--679, 95 S.Ct. 1255, and requires proof of those facts to sustain a conviction. 18 U.S.C. § 2112 is designed to protect those who have government property in their immediate possession and requires proof that the property taken belongs to the United States.
19
We find that the test set forth in Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and recently applied in this Circuit in United States v. Belt, 516 F.2d 873 (8th Cir. 1975), has been satisfied here.4 In Blockburger, the Court upheld three separate convictions and sentences relating to one sale of narcotics. See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (upholding the Blockburger doctrine). In Belt, the Court upheld convictions of robbery and burglary arising from a single incident while dismissing the conviction for larceny, finding that larceny is a lesser included offense of the crime of robbery.
20
Separate congressional policies are reflected in each of the two statutes here in question, and proof of separate elements are necessary. We find, therefore, that the trial court did not err in assessing three-year sentences on each conviction.
21
Affirmed.
1
18 U.S.C. § 2112 states:
Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.
18 U.S.C. § 111 states in part:
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
2
Carter was indicted as a codefendant with Roundtree. He was tried separately and convicted on all three counts stated in their common indictment
3
See n. 1, supra
4
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
| {
"pile_set_name": "FreeLaw"
} |
264 P.3d 1048 (2011)
46 Kan. App. 2d 801
STATE of Kansas, Appellee,
v.
Robert William RICHARDSON, Appellant.
No. 104,676.
Court of Appeals of Kansas.
November 4, 2011.
*1049 Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., McANANY, J., and BRAZIL, S.J.
STANDRIDGE, J.
Robert William Richardson appeals from the district court's decision to deny his motion for jail time credit. Specifically, Richardson claims he should receive jail time credit towards his Wyandotte County conviction for time spent in custody on his Lyon County convictions because his Lyon County convictions were later reversed by the Kansas Supreme Court. For the reasons set forth below, we affirm the decision of the district court.
FACTS
In 2006, the State of Kansas criminally charged Richardson in several cases in three separate counties for exposing another to a life-threatening communicable disease. See K.S.A. 21-3435. Because it is relevant to the issues presented by Richardson on appeal, we direct our attention to the following chronology for the cases in two of those counties:
05-2006 and 06-2006: Lyon County, Kansas prosecutor filed charges against Richardson (Lyon County cases).
08-14-2006: Wyandotte County, Kansas prosecutor filed charges against Richardson (Wyandotte County case); arrest warrant issued.
02-13-2008: Richardson convicted in Lyon County cases and committed to El Dorado Correctional Facility to serve sentence.
02-11-2009: Wyandotte County District Court ordered sheriff to transport Richardson from El Dorado Correctional Facility to Wyandotte County to answer charges filed in 2006.
02-23-2009: Pursuant to court order, Richardson transported from El Dorado Correctional Facility to Wyandotte County.
02-24-2009: Wyandotte County arrest warrant served on Richardson; Richardson makes first appearance in Wyandotte County case.
06-04-2009: Preliminary hearing held in Wyandotte County case; Richardson bound over for trial.
06-19-2009: Kansas Supreme Court reversed Richardson's convictions in Lyon County cases.
08-20-2009: Richardson convicted of Count I in Wyandotte County case.
On January 5, 2010, Richardson filed a motion in the Wyandotte County case requesting 375 days be credited towards the sentence imposed in that case. Specifically, Richardson claimed he deserved jail credit for time spent in custody from February 13, 2008 (when the order of commitment was issued in the Lyon County cases), through February 22, 2009 (he was transported to Wyandotte County to answer the charges pending there on February 23, 2009). Richardson argued he was entitled to this credit as a matter of equity based on the fact that his Lyon County convictions were reversed and his sentence vacated. See State v. Richardson, 289 Kan. 118, 209 P.3d 696 (2009). The district court denied the motion for jail time credit.
ANALYSIS
The rule for applying jail credit to a defendant's sentence is found in K.S.A. 21-4614, which states:
"In any criminal action in which the defendant is convicted upon a plea of guilty or no contest or trial by court or jury or upon completion of an appeal, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole *1050 eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the Kansas parole board are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted."
Finding no ambiguity in the statutory language, our Supreme Court has held K.S.A. 21-4614 means what it says: Jail time credit can be earned only for time spent in jail solely on the account of the offense for which the defendant is being sentenced. Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978). In this case, Richardson was in custody from February 13, 2008, through February 22, 2009, solely as a result of the Lyon County convictions. Pursuant to the plain language of the statute, we necessarily conclude Richardson is not entitled to jail time credit, in Wyandotte County for time served exclusively on other charges. Moreover, we are not persuaded by Richardson's argument that principles of equity require such a credit. This is because the underlying premise upon which the argument is based is purely speculative. In order to succeed on such an argument, Richardson is required to establish that Wyandotte County would have actively sought and discovered his whereabouts, arrested him, and then detained him solely on the Wyandotte County charges from February 13, 2008, to February 22, 2009. There is simply no evidence in the record to support such a finding, which renders Richardson's equity argument speculative at best. See Smith v. U.S. Parole Com'n, 875 F.2d 1361, 1364 (9th Cir.1989) (noting that the government has no duty to take a defendant into custody).
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
529 N.W.2d 77 (1995)
3 Neb.App. 474
In re Interest of McCAULEY H., a child under 18 years of age.
STATE of Nebraska, Appellee,
v.
JOELLEN R., Appellant.
No. A-94-700.
Court of Appeals of Nebraska.
February 21, 1995.
Review Overruled April 12, 1995.
*79 William G. Line, of Kerrigan & Line, for appellant.
Dean Skokan, Dodge County Atty., and Sandra Silva, for appellee.
IRWIN and MILLER-LERMAN, JJ., and NORTON, District Judge, Retired.
MILLER-LERMAN, Judge.
JoEllen R., the natural mother of the juvenile, McCauley H., appeals the decision of the juvenile court for Dodge County adjudicating McCauley a juvenile as described in Neb. Rev.Stat. § 43-247(3)(a) (Reissue 1993). For the reasons recited below, we affirm.
PROCEDURAL HISTORY
The procedural history of this case shows the following: A petition was filed on December 1, 1993, alleging that McCauley was a juvenile under § 43-247(3)(a). An amended petition dated December 8 alleged that McCauley was a child under § 43-247(3)(a) in that
1. McCauley S. [H.] is a child who, is in a situation dangerous to life or limb or injurious to the health or morals of such juvenile, to wit: on or about November 15, 1993, said child was subjected to physical abuse.
2. McCauley S. [H.] is under the age of eighteen years of age, having been born March 14, 1992 and resides at [address given].
Although the natural father was identified in the amended petition, he did not participate in the proceedings which are the subject of this appeal.
*80 A temporary order was entered on December 10, placing McCauley with the Department of Social Services. An adjudication hearing was conducted on February 2 and 16, 1994. On February 17, the county court sitting as a juvenile court adjudicated McCauley to be a juvenile as defined in § 43-247(3)(a). The court found by a preponderance of the evidence that the multiple bruises sustained by McCauley were consistent with a finding that the child had been subjected to physical abuse, although the evidence was inconclusive as to who inflicted the bruises. The court also found that the bruises on the child were inconsistent with being caused accidentally or incidental to the child's own behavior. The court adjudicated McCauley as a child "who is in a situation dangerous to life or limb, or injurious to his health, in that on or about November 15, 1993, said child was subjected to physical abuse." In making these findings and conclusions, the trial court noted that "[n]umerous witnesses testified as to possible causes for the bruises, as well as the character and veracity of the child's primary caretakers."
The mother appealed the adjudication order to the district court, which affirmed the order. This appeal followed.
ASSIGNMENTS OF ERROR
On appeal, the mother claims that the evidence was insufficient to establish that McCauley was a child under § 43-247(3)(a) and that she was prejudiced by the exclusion of certain evidence at the adjudication hearing.
FACTS
The record shows that on the afternoon of November 25, 1993, Officer Dwight Murphy of the Fremont Police Department was dispatched to the residence of McCauley' paternal grandmother. She called the police upon discovering that McCauley had bruises over his face, back, and rib area. McCauley was subsequently taken into protective custody.
On November 29, 1993, Dr. Cynthia Wengel, a board-certified pediatrician, examined the child and concluded that McCauley had been intentionally injured on multiple occasions. Dr. Wengel concluded that the bruises over McCauley's entire body were received on various occasions within the last 5 to 14 days. At the adjudication hearing, she opined that the bruises were not accidentally acquired because of their bilateral placement, because of their location, and because children 18 months old do not usually fall backward. Dr. Wengel further opined that McCauley's behavior was subdued and fearful and was consistent with abuse. It was Dr. Wengel's opinion that McCauley had been intentionally physically abused.
Dr. Monty Sellon, the child's primary care physician, was called as a witness by the mother at the adjudication hearing. Dr. Sellon stated that McCauley had received well-baby care, but that in his records, Dr. Sellon had noted concern of possible child abuse. Dr. Sellon also observed the extensive bruises depicted in photographs in evidence.
The record shows that from the date he was born, March 14, 1992, until November 25, 1993, McCauley had been in the care and custody of his mother. The mother shared her home with her boyfriend and allowed him to babysit McCauley on occasion. The boyfriend's criminal history and drug and alcohol abuse problems were testified to at the adjudication hearing.
Neither the mother nor her boyfriend could explain how a child in their custody and control could become so bruised. The mother testified that she did not see the bruises. Alternatively, she claimed that McCauley may have received the multiple bruises as depicted in the photographs in evidence from playing or falling, or from roughhousing with other little boys. The boyfriend denied abusing McCauley.
The boyfriend's former wife was called as a witness by the mother. She stated that her ex-husband had a good relationship with the children of their marriage and was not known to abuse them.
The paternal grandmother testified that November 25, 1993, was not the first time she had seen her grandson with bruises. She stated that she had also observed bruises on McCauley's body on October 18, 1993, at which time the boyfriend was living with the mother. The record shows that *81 McCauley's bruises ceased to exist once he was taken from the care of his mother on November 25.
During the mother's testimony at the adjudication hearing, her trial counsel identified and offered a December 11, 1993, letter written to the mother by her former counsel to the effect that after speaking with the county attorney's office, it appeared to counsel that the case specifically against the mother was not as strong as the State had originally suggested. The essence of the letter was that the county attorney thought that the mother was protecting her boyfriend by refusing to implicate him as being responsible for McCauley's injuries. The letter recites that the county attorney had stated the foregoing and more to the former counsel. The mother's trial attorney offered to call the first counsel as a witness as an alternative to receipt of the letter in evidence. The State objected to the receipt of the letter or comparable live testimony on the bases of hearsay and relevance. The trial court sustained the objection.
The record from the adjudication hearing consumes about 150 pages of testimony by 10 live witnesses and numerous exhibits, including photographs of McCauley which graphically depicted injuries over a substantial portion of his body. Following the adjudication hearing, the trial court found McCauley to be a juvenile as defined in § 43-247(3)(a). The adjudication order was affirmed by the district court, and this appeal followed.
ANALYSIS
Sufficiency of Evidence.
The mother argues that the evidence was insufficient to establish jurisdiction over McCauley under § 43-247(3)(a). She claims specifically that the evidence did not establish directly who inflicted the bruises on McCauley. The State responds that the preponderance of the evidence shows that the bruises sustained by McCauley were not normal or accidental but intentional, and in any event, the child was shown to be in a situation injurious to his health as defined in § 43-247(3)(a). We agree with the State.
We review this appeal de novo, recognizing that the trial court observed the witnesses and accepted one version of the facts rather than another. In re Interest of L.P. and R.P., 240 Neb. 112, 480 N.W.2d 421 (1992); In re Interest of J.L.H., J.L.H., and R.H., 2 Neb.App. 40, 507 N.W.2d 641 (1993).
The relevant portion of § 43-247 applicable to this case provides as follows: "The juvenile court in each county as herein provided shall have jurisdiction of: ... (3) Any juvenile (a) who is ... in a situation ... dangerous to life or limb or injurious to the health or morals of such juvenile...." The quantitative proof required for an adjudication based on § 43-247(3)(a) is "preponderance of the evidence" and, therefore, is analogous to the standard of proof generally applicable in civil cases. In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991); In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 (1986). See, also, Neb.Rev.Stat. § 43-279.01(3) (Reissue 1993).
It has been held that "the Nebraska Juvenile Code must be liberally construed to accomplish its purposes serving the best interests of juveniles within the act." In re Interest of L.D. et al., 224 Neb. at 257, 398 N.W.2d at 97. It has also been observed that "[t]he right of parents to maintain custody of their child is a natural right, subject only to the paramount interest which the public has in the protection of the rights of the child." In re Interest of C.P., 235 Neb. 276, 284, 455 N.W.2d 138, 144 (1990).
We have reviewed the record in this case de novo, as we are required to do. In re Interest of L.P. and R.P., supra; In re Interest of J.L.H., J.L.H., and R.H., supra. The direct evidence amply establishes that given their placement, configuration, and aging, McCauley's extensive bruises were consistent with the conclusions that McCauley had been abused and was in a situation dangerous to life or limb, rather than the conclusion that the bruises had occurred normally or had been caused by accident. The direct evidence is undisputed that McCauley's injuries occurred while the child was in his mother's custody. Although the injuries occurred on her watch, the mother argues that the *82 evidence is merely circumstantial as to who inflicted the bruises and that, therefore, the State's proofs failed to establish jurisdiction by a preponderance of the evidence.
Numerous jurisdictions which have considered the question of sufficiency of circumstantial evidence in connection with juvenile proceedings involving issues of child neglect or child abuse have adopted the position that a finding of abuse or neglect may be supported where the record shows (1) a parent's control over the child during the period when the abuse or neglect occurred and (2) multiple injuries or other serious impairment of health have occurred which ordinarily would not occur in the absence of abuse or neglect. See Higgins v. Dallas Cty. Child Welfare Unit, 544 S.W.2d 745 (Tex.Civ.App. 1976), overruled on other grounds, In re Interest of S.H.A., 728 S.W.2d 73 (Tex.App. 1987). We adopt the foregoing proposition in the instant case. See, also, Matter of S.J.Z., 252 N.W.2d 224 (S.D.1977) (holding that circumstantial evidence may be sufficient to establish child abuse or neglect, because requiring proof of the striking blow would place an onerous burden upon the State and would ignore the competing interests of the child); In the Matter of S., 46 Misc.2d 161, 259 N.Y.S.2d 164 (1965) (holding that res ipsa loquitur applies to a battered child proceeding permitting an inference of neglect to be drawn from proof of the child's age and condition, and that the latter is such as in the ordinary course of things does not happen if a parent who has the responsibility and control of an infant is protective and nonabusive). We are aware that in Nebraska, circumstantial evidence of intent may be used to establish abandonment as a basis for terminating parental rights. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990). We are also aware that the application of res ipsa loquitur to child abuse and child neglect cases has been adopted by statute in some jurisdictions. See, e.g., N.Y.Fam.Ct. Act § 1046(a)(ii) (McKinney 1983); Conn.Gen. Stat.Ann. § 17a-101(f)(4) (West 1992); R.I.Gen.Laws § 40-11-7.1 (1990).
In endorsing the use of circumstantial evidence to establish child neglect or child abuse, it has been stated that "[l]earned commentators have pointed out that in many such cases the only proof available is circumstantial evidence since abusive actions usually occur within the privacy of the home, the child is either intimidated or too young to testify, and the parents tend to protect each other." Higgins, 544 S.W.2d at 750. See, also, Rowine H. Brown et al., Medical and Legal Aspects of the Battered Child Syndrome, 50 Chi.-Kent L.Rev. 45 (1973).
We have reviewed the record de novo and conclude that the preponderance of evidence shows that McCauley was a juvenile as defined under § 43-247(3)(a).
Exclusion of Letter Written by Former Counsel.
The mother claims on appeal that the exclusion of the December 11, 1993, letter to her from her former counsel, or comparable oral testimony, was improperly excluded and that she was prejudiced thereby. Her arguments are of a conspiratorial nature, generally to the effect that the instant case was pursued by the State as leverage to force her to implicate her boyfriend, apparently as a basis for a possible separate action against him. The mother claims that the letter would have demonstrated the weakness of the State's case in the current proceeding. The State responds that the letter is inadmissible as hearsay within hearsay, and, in any event, is irrelevant and was properly excluded. We agree that the letter was properly excluded.
Under Nebraska jurisprudence, the strict rules of evidence do not apply to temporary juvenile proceedings, to dispositional hearings, or to proceedings to terminate parental rights. See, In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991) (detention hearing and dispositional hearing); In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991) (termination hearing); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987) (termination hearing). However, the Nebraska Supreme Court has held that the Nebraska Evidence Rules do "control adduction of evidence at an adjudication hearing under the Nebraska Juvenile Code." In re Interest of J.S., A.C., and C.S., *83 227 Neb. at 262, 417 N.W.2d at 155. See, also, In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).
It has been held that in all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Anderson, 245 Neb. 237, 512 N.W.2d 367 (1994). Although the State claims that the letter was properly excluded as hearsay, we need not decide this argument because we conclude the letter was properly excluded as irrelevant. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994) (holding that an appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it).
Under Neb.Evid.R. 401, "[r]elevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence is probative if it tends in any degree to alter the probability of a material fact. State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990); State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988). To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991).
It has been held:
There are two components to relevant evidence: "`[M]ateriality and probative value. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. What is `in issue,' that is, within the range of the litigated controversy, is determined mainly by the pleadings, read in the light of the rules of pleading and controlled by the substantive law....
"`The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove....'
State v. Bell, 242 Neb. 138, 141, 493 N.W.2d 339, 343 (1992), quoting State v. Baltimore, 236 Neb. 736, 463 N.W.2d 808 (1990). See, also, State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994).
The "fact that is of consequence," within the meaning of Neb.Evid.R. 401, in the instant case is whether or not McCauley was a juvenile under § 43-247(3)(a) because he was or was not in a situation dangerous to life or limb or injurious to his health. The letter proffered by the mother was not material to the issue of McCauley's situation and was, therefore, not relevant. At best, the letter pertained to the county attorney's view of the strength of the State's case. The county attorney's pretrial view of the case is not probative of any material fact in the case as presented at trial and before us upon review. Based on the foregoing, we conclude that the letter and comparable testimony were properly excluded as not relevant.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.